WESTERN GOLDFIELDS, INC. 31,115,000 Shares Common Stock ($0.01 par value per Share) Underwriting Agreement January 18, 2007
CONFORMED
WESTERN
GOLDFIELDS, INC.
31,115,000 Shares
Common
Stock
($0.01
par value per Share)
January
18, 2007
January
18, 0000
Xxxxxxxxxx
Xxxx Xxxxxxx Xxxxxxx (XXX) Inc.
BMO
Capital Markets Corp.
as
Managing Underwriters
c/o
Wellington West Capital Markets Inc.
000
Xxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
XX
Xxxxxx,
X0X 0X0
Ladies
and Gentlemen:
Western
Goldfields, Inc., an Idaho corporation (the “Company”),
proposes to issue and sell to the underwriters named in Schedule
A
annexed
hereto (the “Underwriters”),
for
whom you are acting as representatives, an aggregate of 31,115,000 shares (the
“Firm
Shares”)
of
common stock, $0.01 par value per share (the “Common
Stock”),
of
the Company. In addition, solely for the purpose of covering over-allotments,
the Company proposes to grant to the Underwriters the option to purchase from
the Company up to an additional 2,215,000 shares of Common Stock (the
“Additional
Shares”).
The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the “Shares.”
The
Shares are described in the Prospectus which is referred to below.
The
Company has prepared and filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the “Act”),
with
the Securities and Exchange Commission (the “Commission”)
a
registration statement on Form S-3 (File No. 333-137847) under the Act (the
“registration
statement”),
including a prospectus, which registration statement incorporates by reference
documents which the Company has filed, or will file, in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules
and
regulations thereunder (collectively, the “Exchange
Act”).
Amendments to such registration statement, if necessary or appropriate, have
been similarly prepared and filed with the Commission in accordance with the
Act. Such registration statement, as so amended, has become effective under
the
Act.
Except
where the context otherwise requires, “Registration
Statement,”
as
used herein, means the registration statement, as amended at the time of such
registration statement’s effectiveness for purposes of Section 11 of the Act, as
such section applies to the respective Underwriters (the “Effective
Time”),
including (i) all documents filed as a part thereof or incorporated or deemed
to
be incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant
to
Rule 424(b) under the Act, to the extent such information is deemed, pursuant
to
Rule 430B or Rule 430C under the Act, to be part of the registration statement
at the Effective Time, and (iii) any registration statement filed to register
the offer and sale of Shares pursuant to Rule 462(b) under the Act.
The
Company has furnished to you, for use by the Underwriters and by dealers in
connection with the offering of the Shares, copies of the preliminary prospectus
supplement dated January 17, 2007, and the documents incorporated by reference
therein, relating to the Shares. Except where the context otherwise requires,
“Pre-Pricing
Prospectus,”
as
used herein, means such preliminary prospectus supplement, in the form so
furnished, including the
basic
prospectus (whether or not in preliminary form) furnished to you by the Company
and attached to or used with such preliminary prospectus supplement.
Except
where the context otherwise requires, “Basic
Prospectus,”
as
used herein, means such basic prospectus and any basic prospectus furnished
to
you by the Company and attached to or used with the Prospectus Supplement (as
defined below).
Except
where the context otherwise requires, “Prospectus
Supplement,”
as
used herein, means the final prospectus supplement, relating to the Shares,
filed by the Company with the Commission pursuant to Rule 424(b) under the
Act
on or before the second business day after the date hereof (or such earlier
time
as may be required under the Act), in the form furnished by the Company to
you
for use by the Underwriters and by dealers in connection with the offering
of
the Shares.
Except
where the context otherwise requires, “Prospectus,”
as
used herein, means the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“Permitted
Free Writing Prospectuses,”
as
used herein, means the documents listed on Schedule
B
attached
hereto and each “road show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act). The Underwriters have not
offered or sold and will not offer or sell, without the Company’s consent, any
Shares by means of any “free writing prospectus” (as defined in Rule 405 under
the Act) that is required to be filed by the Underwriters with the Commission
pursuant to Rule 433 under the Act, other than a Permitted Free Writing
Prospectus.
“Disclosure
Package,”
as
used herein, means any Pre-Pricing Prospectus or Basic Prospectus, in either
case together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any.
Any
reference herein to the registration statement, the Registration Statement,
any
Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer
to
and include the documents, if any, incorporated by reference, or deemed to
be
incorporated by reference, therein (the “Incorporated
Documents”),
including, unless the context otherwise requires, the documents, if any, filed
as exhibits to such Incorporated Documents. Any reference herein to the terms
“amend,”
“amendment”
or
“supplement”
with
respect to the Registration Statement, any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act on or after the initial effective date of the
Registration Statement, or the date of such Basic Prospectus, such Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be incorporated therein
by
reference.
-
2 -
The
Company has also filed with the Canadian securities regulatory authorities
in
the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,
New
Brunswick, Nova Scotia, Xxxxxx Xxxxxx Island, Newfoundland and Labrador (the
“Canadian Regulatory Authorities”, an “MJDS Prospectus” as defined in Canadian
National Instrument 71-101 (“NI 71-101”) and obtained a receipt therefore. The
Company and the Underwriters agree to the covenants, and make the
representations and warranties regarding offers and sales of Firm Shares and
Additional Shares in Canada as set out on Schedule
C.
As
used
in this Agreement, “business
day”
shall
mean a day on which the New York Stock Exchange (the “NYSE”)
is
open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence
or
other subdivision of this Agreement. The term “or,” as used herein, is not
exclusive.
The
Company and the Underwriters agree as follows:
1. Sale
and Purchase.
Upon
the basis of the representations and warranties and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule
A
attached
hereto, subject to adjustment in accordance with Section 9 hereof, in each
case
at a purchase price of Cdn $2.115 per Share. The Company is advised by you
that the Underwriters intend (i) to make a public offering of their respective
portions of the Firm Shares as soon after the effectiveness of this Agreement
as
in your judgment is advisable and (ii) initially to offer the Firm Shares upon
the terms set forth in the Prospectus. You may from time to time increase or
decrease the public offering price after the initial public offering to such
extent as you may determine.
In
addition, the Company hereby grants to the several Underwriters the option
(the
“Over-Allotment
Option”)
to
purchase, and upon the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Underwriters shall have the
right to purchase, severally and not jointly, from the Company, all or a portion
of the Additional Shares as may be necessary to cover over-allotments made
in
connection with the offering of the Firm Shares, at the same purchase price
per
share to be paid by the Underwriters to the Company for the Firm Shares. The
Over-Allotment Option may be exercised by Wellington West Capital Markets (USA)
Inc. (“Wellington”) on behalf of the several Underwriters at any time and from
time to time on or before the thirtieth day following the date of the Prospectus
Supplement, by written notice to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the Over-Allotment Option
is
being exercised and the date and time when the Additional Shares are to be
delivered (any such date and time being herein referred to as an “additional
time of purchase”);
provided,
however,
that no
additional time of purchase shall be earlier than the “time of purchase” (as
defined below) nor earlier than the third business day after the date on which
the Over-Allotment Option shall have been exercised nor later than the tenth
business day after the date on which the Over-Allotment Option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule
A
hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as Wellington may determine to eliminate fractional shares), subject
to adjustment in accordance with Section 9 hereof.
-
3 -
2. Payment
and Delivery.
Payment
of the purchase price for the Firm Shares shall be made to the Company by wire
transfer against delivery of the certificates for the Firm Shares to you through
the facilities of The Depository Trust Company (“DTC”)
or
another depository designated by the Underwriters for the respective accounts
of
the Underwriters. Such payment and delivery shall be made at 10:00 A.M.,
New York City time, on January 25, 2007 (unless another time shall be agreed
to
by you and the Company or unless postponed in accordance with the provisions
of
Section 9
hereof).
The time at which such payment and delivery are to be made is hereinafter
sometimes called the “time
of purchase.”
Electronic transfer of the Firm Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall
specify.
Payment
of the purchase price for the Additional Shares shall be made at the additional
time of purchase in the same manner and at the same office as the payment for
the Firm Shares. Electronic transfer of the Additional Shares shall be made
to
you at the additional time of purchase in such names and in such denominations
as you shall specify.
Deliveries
of the documents described in Section 7 hereof with respect to the purchase
of
the Shares shall be made at the offices of White & Case LLP at 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, at 9:00 A.M., New York City time, on the
date of the closing of the purchase of the Firm Shares or the Additional Shares,
as the case may be.
3. Representations
and Warranties of the Company.
The
Company represents and warrants to and agrees with each of the Underwriters
that:
(a) the
Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and
sale
of Shares pursuant to Rule 462(b) under the Act, will be filed with the
Commission and become effective under the Act no later than 10:00 P.M., New
York
City time, on the date of determination of the public offering price for the
Shares; no stop order of the Commission preventing or suspending the use of
any
Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of
the
Registration Statement, has been issued, and no proceedings for such purpose
have been instituted or, to the Company’s knowledge, are contemplated by the
Commission;
-
4 -
(b) the
Registration Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares, will comply, in all material respects, with the requirements of the
Act;
the conditions to the use of Form S-3 in connection with the offering and
sale of the Shares as contemplated hereby have been satisfied; the Registration
Statement meets, and the offering and sale of the Shares as contemplated hereby
complies with, the requirements of Rule 415 under the Act; the Registration
Statement did not, as of the Effective Time, contain an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading; each Pre-Pricing
Prospectus complied, at the time it was filed with the Commission, and complies
as of the date hereof, in all material respects with the requirements of the
Act; at no time during the period that begins on the earlier of the date of
such
Pre-Pricing Prospectus and the date such Pre-Pricing Prospectus was filed with
the Commission and ends at the time of purchase did or will any Pre-Pricing
Prospectus, as then amended or supplemented, include an untrue statement 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 under which they were
made, not misleading, and at no time during such period did or will any
Pre-Pricing Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, include an untrue statement 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 under which they were made, not misleading; the
Basic
Prospectus complied, as of its date and the date it was filed with the
Commission, complies as of the date hereof and, at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares, will comply, in all material respects, with the requirements of the
Act;
each Pre-Pricing Prospectus and the Prospectus Supplement will comply, as of
the
date that it is filed with the Commission, the date of the Prospectus
Supplement, the time of purchase, each additional time of purchase, if any,
and
at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, in all material respects,
with the requirements of the Act (in the case of the Prospectus, including,
without limitation, Section 10(a) of the Act); at no time during the period
that
begins on the earlier of the date of the Prospectus Supplement and the date
the
Prospectus Supplement is filed with the Commission and ends at the later of
the
time of purchase, and the latest additional time of purchase, if any, did or
will any Prospectus Supplement or the Prospectus, as then amended or
supplemented, include an untrue statement 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 under which they were made, not misleading; at no time during
the period that begins on the date of such Permitted Free Writing Prospectus
and
ends at the time of purchase did or will any Permitted Free Writing Prospectus
include an untrue statement 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 under which they were made, not misleading; provided,
however,
that
the Company makes no representation or warranty in this Section 3(b)
with
respect to any statement contained in the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus
in reliance upon and in conformity with information concerning an Underwriter
and furnished in writing by or on behalf of such Underwriter through you to
the
Company expressly for use in the Registration Statement, such Pre-Pricing
Prospectus, the Prospectus or such Permitted Free Writing Prospectus; each
Incorporated Document, at the time such document was filed with the Commission
or at the time such document became effective, as applicable, complied, in
all
material respects, with the requirements of the Exchange Act;
-
5 -
(c) prior
to
the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection
with the offer or sale of the Shares, in each case other than the Pre-Pricing
Prospectuses and the Permitted Free Writing Prospectuses, if any; the Company
has not, directly or indirectly, prepared, used or referred to any Permitted
Free Writing Prospectus except in compliance with Rules 164 and 433 under the
Act; neither the Company nor the Underwriters are disqualified, by reason of
subsection (f) or (g) of Rule 164 under the Act, from using, in connection
with
the offer and sale of the Shares, “free writing prospectuses” (as defined in
Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the Company
is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the
Act
with respect to the offering of the Shares contemplated by the Registration
Statement; the parties hereto agree and understand that the content of any
and
all “road shows” (as defined in Rule 433 under the Act) related to the offering
of the Shares contemplated hereby is solely the property of the
Company;
(d) as
of the
date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement,
the
Pre-Pricing Prospectuses and the Prospectus entitled “Description of common
stock” (and any similar sections or information, if any, contained in any
Permitted Free Writing Prospectus), and, as of the time of purchase and any
additional time of purchase, as the case may be, the Company shall have an
authorized and outstanding capitalization as set forth in the sections of the
Registration Statement, the Pre-Pricing Prospectuses and the Prospectus entitled
“Description of common stock” (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus) (subject, in each case,
to
the issuance of shares of Common Stock upon exercise of stock options and
warrants disclosed as outstanding in the Registration Statement, each
Pre-Pricing Prospectus and the Prospectus and the grant of options under
existing stock option plans described in the Registration Statement, each
Pre-Pricing Prospectus and the Prospectus)”; all of the issued and outstanding
shares of capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and non-assessable, have
been issued in compliance with all applicable securities laws and were not
issued in violation of any preemptive right, resale right, right of first
refusal or similar right, except no representation is made with respect to
any
preemptive right under statute or common law; as of the time of purchase, the
Shares will be conditionally approved for listing on the Toronto Stock Exchange
(the “TSX”);
(e) the
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Idaho, with full corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, to execute
and
deliver this Agreement and to issue, sell and deliver the Shares to be sold
by
it pursuant hereto as contemplated herein;
-
6 -
(f) the
Company is duly qualified to do business as a foreign corporation and is in
good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or
in
the aggregate, either (i) have a material adverse effect on the business,
properties, financial condition, results of operations or prospects of the
Company and the Subsidiary (as defined below) taken as a whole, (ii) prevent
or
materially interfere with consummation of the transactions contemplated hereby
or (iii) result in the delisting of shares of Common Stock from the TSX (the
occurrence of any such effect or any such prevention or interference or any
such
result described in the foregoing clauses (i), (ii) and (iii) being herein
referred to as a “Material
Adverse Effect”);
(g) the
Company has no “significant subsidiary” (as such term is defined in Rule 1-02 of
Regulation S-X of the Commission) other than Western Mesquite Mines, Inc. (the
“Subsidiary”);
the
Company owns all of the issued and outstanding capital stock of the Subsidiary;
other than the capital stock of the Subsidiary, the Company does not own,
directly or indirectly, any shares of stock or any other equity interests or
long-term debt securities of any corporation, firm, partnership, joint venture,
association or other entity; complete and correct copies of the charters and
the
bylaws of the Company and the Subsidiary and all amendments thereto have been
delivered to you, and no changes therein will be made on or after the date
hereof through and including the time of purchase or, if later, any additional
time of purchase; the Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of
its incorporation, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any; the Subsidiary is duly qualified
to
do business as a foreign corporation and is in good standing in each
jurisdiction where the ownership or leasing of its properties or the conduct
of
its business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate,
have
a Material Adverse Effect; all of the outstanding shares of capital stock of
the
Subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable, have been issued in compliance with all applicable securities
laws, were not issued in violation of any preemptive right, resale right, right
of first refusal or similar right and are owned by the Company subject to no
security interest, other encumbrance or adverse claims; and no options, warrants
or other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or ownership
interests in the Subsidiaries are outstanding;
(h) the
Shares to be sold by the Company pursuant hereto have been duly and validly
authorized and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and non-assessable and
not
issued in violation of any contractual preemptive rights, resale rights, rights
of first refusal and similar rights, except no representation is made with
respect to any preemptive right under statute or common law; the Shares to
be
sold by the Company pursuant hereto, when issued and delivered against payment
therefor as provided herein, will not be issued in violation of any restriction
upon the voting or transfer thereof pursuant to the Company’s charter or bylaws
or any agreement or other instrument to which the Company is a
party;
-
7 -
(i) the
capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof, if any, contained or incorporated by
reference in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any; and the
certificates for the Shares are in due and proper form;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) neither
the Company nor the Subsidiary is in breach or violation of or in default under
(nor has any event occurred which, with notice, lapse of time or both, would
result in any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (A) its charter or bylaws, or (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound
or
affected, or (C) any federal, state, local or foreign law, regulation or rule,
or (D) any rule or regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the rules
and regulations applicable to the TSX), or (E) any decree, judgment or order
applicable to it or any of its properties, except, with respect to clauses
(B)
through (D) as would not have a Material Adverse Effect
on the
Company and the Subsidiary, taken as a whole;
(l) the
execution, delivery and performance of this Agreement, the issuance and sale
of
the Shares to be sold by the Company pursuant hereto and the consummation of
the
transactions contemplated hereby will not conflict with, result in any breach
or
violation of or constitute a default under (nor constitute any event which,
with
notice, lapse of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness (or a person
acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a part of such indebtedness under) (or result in the
creation or imposition of a lien, charge or encumbrance on any property or
assets of the Company or the Subsidiary pursuant to) (A) the charter or bylaws
of the Company or the Subsidiary, or (B) any indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Company or the
Subsidiary is a party or by which any of them or any of their respective
properties may be bound or affected, or (C) any federal, state, local or foreign
law, regulation or rule, or (D) any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without
limitation, the rules and regulations applicable to the TSX), or (E) any decree,
judgment or order applicable to the Company or the Subsidiary or any of their
respective properties, except, with respect to clauses (B) through (D) as would
not have a Material Adverse Effect on the Company and the Subsidiary, taken
as a
whole;
-
8 -
(m) no
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the TSX,
and the Canadian Regulatory Authorities), or approval of the shareholders of
the
Company, is required in connection with the issuance and sale of the Shares
to
be sold by the Company pursuant hereto or the consummation by the Company of
the
transactions contemplated hereby, other than (i) registration of the Shares
under the Act, which
has
been effected (or, with respect to any registration statement to be filed
hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance
herewith), (ii) any necessary qualification under the securities or blue sky
laws of the various jurisdictions in which the Shares are being offered by
the
Underwriters, (iii) under the Conduct Rules of the National Association of
Securities Dealers, Inc. (the “NASD”),
(iv)
the filing under NI 71-101 of an MJDS Prospectus and required supplements and
amendments, (v) approval of the TSX regarding the listing of the Shares, or
(vi)
as have been or will be obtained prior to the time of sale or additional time
of
sale, as the case may be;
(n) except
as
described in the Registration Statement, each Pre-Pricing Prospectus and the
Prospectus, (i) no person has the right, contractual or otherwise, to cause
the
Company to issue or sell to it any shares of Common Stock or shares of any
other
capital stock or other equity interests of the Company, (ii) no person has
any
preemptive rights, resale rights, rights of first refusal or other rights to
purchase any shares of Common Stock or shares of any other capital stock of
or
other equity interests in the Company and (iii) no person has the right to
act
as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Shares; no person has the right, contractual or
otherwise, to cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock of or other equity interests in
the
Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby;
(o) each
of
the Company and the Subsidiary has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary licenses,
authorizations, consents and approvals from other persons, in order to conduct
their respective businesses except where failure to have such licenses,
authorizations, consents and approvals would not result in a Material Adverse
Effect; neither the Company nor the Subsidiary is in violation of, or in default
under, or has received notice of any proceedings relating to revocation or
modification of, any such license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree, order
or
judgment applicable to the Company or the Subsidiary, except where such
violation, default, revocation or modification would not, individually or in
the
aggregate, have a Material Adverse Effect;
-
9 -
(p) there
are
no actions, suits, claims, reviews, investigations or proceedings pending or,
to
the Company’s knowledge, threatened or contemplated to which the Company or the
Subsidiary or any of their respective directors or officers is or would be
a
party or of which any of their respective properties is or would be subject
at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency, or before or by
any
self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the TSX), except any such action, suit, claim,
investigation or proceeding which, if resolved adversely to the Company or
the
Subsidiary, would not, individually or in the aggregate, have a Material Adverse
Effect;
(q) HJ
&
Associates, LLC, whose report on the consolidated financial statements of the
Company and the Subsidiary is included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses and the Prospectus, are
independent registered public accountants as required by the Act and by the
rules of the Public Company Accounting Oversight Board;
(r) the
financial statements included or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, together with the related notes and schedules,
present fairly in all material respects the consolidated financial position
of
the Company and the Subsidiary as of the dates indicated and have been prepared
in compliance with the requirements of the Act and Exchange Act and in
conformity with U.S. generally accepted accounting principles applied on a
consistent basis during the periods involved; the other financial and
statistical data contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, are accurately and fairly presented in all
material respects and prepared on a basis consistent with the financial
statements and books and records of the Company; there are no financial
statements (historical or pro forma) that are required to be included or
incorporated by reference in the Registration Statement, any Pre-Pricing
Prospectus or the Prospectus that are not included or incorporated by reference
as required; the Company and the Subsidiary do not have any material liabilities
or obligations, direct or contingent (including any off-balance sheet
obligations), that are required to be disclosed in the Registration Statement
under the applicable rules of the Act but that are not described in the
Registration Statement, each Pre-Pricing Prospectus and the Prospectus; and
all
disclosures contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, of “non-GAAP financial measures” (as such term is
defined by the rules and regulations of the Commission) comply with Regulation
G
of the Exchange Act and Item 10 of Regulation S-K under the Act, to the extent
applicable;
(s) subsequent
to the respective dates as of which information is given in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, in each case excluding any amendments or
supplements to the foregoing made after the execution of this Agreement, there
has not been (i) any material adverse change, or any development involving
a
prospective material adverse change, in the business, properties, financial
condition or results of operations of the Company and the Subsidiary taken
as a
whole, (ii) any transaction which is material to the Company and the Subsidiary
taken as a whole or (iii) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company or the Subsidiary;
-
10 -
(t) the
Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up
Agreement”),
in
the form set forth as Exhibit
A
hereto,
of each of its directors and senior officers
(listed
on Schedule
D
attached
hereto);
(u) neither
the Company nor the Subsidiary is, and at no time during which a prospectus
is
required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares will either of them be, and, immediately after giving effect to the
offering and sale of the Shares, neither of them will be, an “investment
company” or an entity “controlled” by an “investment company,” as such terms are
defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(v) except
as
disclosed in the Registration Statement, each Pre-Pricing Prospectus and the
Prospectus, the Company and the Subsidiary have good and marketable title to
all
property (real and personal) described the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned by any of them, free and clear of all
liens, claims, security interests or other encumbrances, except where any
deficiencies in title, liens, claims, security interests or other encumbrances
would not have a Material Adverse Effect on the Company and its Subsidiary,
taken as a whole; all the property described in the Registration Statement,
the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being held under lease by the Company or the Subsidiary
is held thereby under valid, subsisting and enforceable leases, except, where
deficiencies in such ownership or lease would not have a Material Adverse Effect
on the Company and its Subsidiary, taken, as a whole;
(w) neither
the Company nor the Subsidiary is engaged in any unfair labor practice; except
for matters which would not, individually or in the aggregate, have a Material
Adverse Effect, (i) there is (A) no unfair labor practice complaint pending
or,
to the Company’s knowledge, threatened against the Company or the Subsidiary
before the National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under collective bargaining agreements is pending
or, to the Company’s knowledge, threatened, (B) no strike, labor dispute,
slowdown or stoppage pending or, to the Company’s knowledge, threatened against
the Company or the Subsidiary and (C) no union representation dispute currently
existing concerning the employees of the Company or the Subsidiary, (ii) to
the
Company’s knowledge, no union organizing activities are currently taking place
concerning the employees of the Company or the Subsidiary and (iii) there has
been no violation of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees, any applicable
wage
or hour laws or any provision of the Employee Retirement Income Security Act
of
1974 (“ERISA”)
or the
rules and regulations promulgated thereunder concerning the employees of the
Company or the Subsidiary;
-
11 -
(x) each
of
the Company and the Subsidiary: (i) is in compliance with any and all applicable
foreign, federal, state and local laws, regulations, rules, orders, judgments,
and decrees relating to hazardous or toxic substances or wastes, pollutants
or
contaminants, or protection of human health and safety, the environment or
wildlife (including flora and fauna) (collectively, “Environmental
Laws”);
(ii)
except as to be disclosed in the Registration Statement, each Pre-Pricing
Prospectus and the 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 the Subsidiary, 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 the Subsidiaries, taken as a whole. Except
as
to be disclosed in the 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 the Subsidiary, taken as a whole;
(y) except
as
would not, individually or in the aggregate, have a Material Adverse Effect
on
the Company and the Subsidiary, taken as a whole, with respect to any premises
leased by the Company and the Subsidiary, the Company and the Subsidiary occupy
the leased premises and have the right to occupy and use the leased premises
and
each of the leases pursuant to which the Company and the Subsidiary occupy
the
leased premises is in good standing and in full force and effect. Any real
property (and the buildings constructed thereon) in which the Company or the
Subsidiary have a direct or indirect interest whether leasehold or fee simple
or
otherwise (the “Real
Property”)
and
the operations thereon are in compliance with all applicable Environmental
Laws
and permits. Except as to be disclosed in the Prospectus none of such Real
Property, or the Company or its Subsidiary is subject to any judicial or
administrative proceeding alleging liability under or the violation of any
Environmental Laws, or to 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 Registration Statement, each Pre-Pricing
Prospectus and the Prospectus, none of the Company, the Subsidiary or, to the
Company’s knowledge, any occupier of the Real Property, has filed any notice
under any Environmental Laws indicating past or present treatment, storage
or
disposal of a Hazardous Material. Except in compliance with applicable
Environmental Laws, none of the Real Property has at any time been used by
the
Company, the Subsidiary, or, to 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 Prospectus, none of the Company,
the
Subsidiary or, to the Company’s knowledge, any occupier of the Real Property,
generates, transports, treats, stores or disposes of any Hazardous Material
(as
defined below) on any of the Real Property in contravention of applicable
Environmental Laws, 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 Environmental Laws. For the
purposes of this and the preceding subparagraph, “Hazardous
Material”
means
any contaminant, pollutant, hazardous waste, industrial waste, toxic matter
or
any other substance that is regulated by applicable Environmental
Law;
-
12 -
(z) all
tax
returns required to be filed by the Company or the Subsidiary have been timely
filed, and all taxes and other assessments of a similar nature (whether imposed
directly or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities have
been timely paid, other than those being contested in good faith and for which
adequate reserves have been provided;
(aa) the
Company and each of the Subsidiary maintain insurance covering their respective
properties, operations, personnel and businesses as the Company reasonably
deems
adequate; such insurance insures against such losses and risks to an extent
which is adequate in accordance with customary industry practice to protect
the
Company and the Subsidiary and their respective businesses; all such insurance
is fully in force on the date hereof and will be fully in force at the time
of
purchase and each additional time of purchase, if any; neither the Company
nor
the Subsidiary has reason to believe that it will not be able to renew any
such
insurance as and when such insurance expires;
(bb) neither
the Company nor the Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or agreements
referred to or described in any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, or referred to or described in, or filed
as
an exhibit to, the Registration Statement or any Incorporated Document, and
no
such termination or non-renewal has been threatened by the Company or the
Subsidiary or, to the Company’s knowledge, any other party to any such contract
or agreement;
(cc) the
Company and the Subsidiary 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 authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
-
13 -
(dd) the
Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and “internal control over financial reporting” (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known
to the Company’s Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the
Company’s independent auditors and the Audit Committee of the Board of Directors
of the Company have been advised of all fraud, if any, whether or not material,
that involves management or other employees who have a role in the Company’s
internal controls since the date of the most recent evaluation of such
disclosure controls and procedures and internal controls, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses; the
principal executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Company have made all certifications
required by the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx
Act”)
and
any related rules and regulations promulgated by the Commission, and the
statements contained in each such certification are complete and correct; the
Company, the Subsidiary and the Company’s directors and officers are each in
compliance in all material respects with all applicable effective provisions
of
the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission
promulgated thereunder;
(ee) each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained or incorporated by reference in
the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, has been made or reaffirmed with
a
reasonable basis and in
good
faith;
(ff) all
statistical or market-related data included or incorporated by reference in
the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, are based on or derived from
sources that the Company reasonably believes to be reliable and
accurate;
(gg) neither
the Company nor the Subsidiary nor, to the knowledge of the Company, any
director, officer, agent or employee or affiliate of the Company or the
Subsidiary is aware of or has taken any action, directly or indirectly, that
would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “Foreign
Corrupt Practices Act”);
-
14 -
(hh) the
Subsidiary is not currently prohibited, directly or indirectly, from paying
any
dividends to the Company, from making any other distribution on the Subsidiary’s
capital stock, from repaying to the Company any loans or advances to the
Subsidiary from the Company or from transferring any of the Subsidiary’s
property or assets to the Company, except as described in the Registration
Statement, each Pre-Pricing Prospectus and the Prospectus, and except, where
such payment, distribution, repayment or transfer would not have a Material
Adverse Effect on the Company and its Subsidiary, taken, as a
whole;
(ii) the
Company has not received any notice from the TSX regarding the delisting,
suspension or halting in the trading of the Common Stock from the
TSX;
(jj) except
pursuant to this Agreement, neither the Company nor the Subsidiary has incurred
any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby or by the Registration Statement;
and
(kk) neither
the Company nor the Subsidiary nor to the Company’s knowledge any of their
respective directors, officers, affiliates or controlling persons has taken,
directly or indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale
of
the Shares.
In
addition, any certificate signed by any officer of the Company or the Subsidiary
and delivered to the Underwriters or counsel for the Underwriters in connection
with the offering of the Shares shall be deemed to be a representation and
warranty by the Company, as to matters covered thereby, to each
Underwriter.
4. Certain
Covenants of the Company.
The
Company hereby agrees:
(a) to
furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky
laws of such states in the United States as you may designate and to maintain
such qualifications in effect so long as you may request for the distribution
of
the Shares; provided,
however,
that
the Company shall not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such jurisdiction
(except service of process with respect to the offering and sale of the Shares);
and to promptly advise you of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for offer
or
sale in any jurisdiction or the initiation or threatening of any proceeding
for
such purpose;
(b) to
make
available to the Underwriters in New York City, as soon as practicable after
this Agreement becomes effective, and thereafter from time to time to furnish
to
the Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration Statement)
as
the Underwriters may request for the purposes contemplated by the Act; in case
any Underwriter is required to deliver (whether physically or through compliance
with Rule 172 under the Act or any similar rule), in connection with the sale
of
the Shares, a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act, or after the time a post-effective amendment to the
Registration Statement is required pursuant to Item 512(a) of Regulation S-K
under the Act, the Company will prepare, at the Underwriters' expense,
promptly upon request such amendment or amendments to the Registration Statement
and the Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K
under the Act, as the case may be;
-
15 -
(c) if,
at
the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or
a
Registration Statement under Rule 462(b) under the Act, to be filed with the
Commission and become effective before the Shares may be sold, the Company
will
use its best efforts to cause such post-effective amendment or such Registration
Statement to be filed and become effective, and will pay any applicable fees
in
accordance with the Act, as soon as possible; and the Company will advise you
promptly and, if requested by you, will confirm such advice in writing, (i)
when
such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used, when the Prospectus
is
filed with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner in accordance with such
Rules);
(d) if,
at
any time during the period when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the
Act
or any similar rule) in connection with any sale of Shares, the Registration
Statement shall cease to comply with the requirements of the Act with respect
to
eligibility for the use of the form on which the Registration Statement was
filed with the Commission, to (i) promptly notify you, (ii) promptly file with
the Commission a new registration statement under the Act, relating to the
Shares, or a post-effective amendment to the Registration Statement, which
new
registration statement or post-effective amendment shall comply with the
requirements of the Act and shall be in a form satisfactory to you, (iii) use
its best efforts to cause such new registration statement or post-effective
amendment to become effective under the Act as soon as practicable, (iv)
promptly notify you of such effectiveness and (v) take all other action
necessary or appropriate to permit the public offering and sale of the Shares
to
continue as contemplated in the Prospectus; all references herein to the
Registration Statement shall be deemed to include each such new registration
statement or post-effective amendment, if any;
(e) to
advise
you promptly, confirming such advice in writing, of any request by the
Commission for amendments or supplements to the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus
or for additional information with respect thereto, or of notice of institution
of proceedings for, or the entry of a stop order, suspending the effectiveness
of the Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its best
efforts to obtain the lifting or removal of such order as soon as possible;
to
advise you promptly of any proposal to amend or supplement the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you
and
Underwriters’ counsel copies of any such documents for review and comment a
reasonable amount of time prior to any proposed filing and to file no such
amendment or supplement to which you shall object in writing;
-
16 -
(f) subject
to Section 4(e)
hereof,
to file promptly all reports and documents and any preliminary or definitive
proxy or information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act for so long as a prospectus
is required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale
of
Shares; and to provide you with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or 15(d) of
the
Exchange Act during such period a reasonable amount of time prior to any
proposed filing, and to promptly notify you of such filing;
(g) to
advise
the Underwriters promptly of the happening of any event within the period during
which a prospectus is required by the Act to be delivered (whether physically
or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, which event could require the making of
any
change in the Prospectus then being used so that the Prospectus would not
include an untrue statement 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 under which they are made, not misleading, and to advise the
Underwriters promptly if, during such period, it shall become necessary to
amend
or supplement the Prospectus to cause the Prospectus to comply with the
requirements of the Act, and, in each case, during such time, subject to Section
4(e)
hereof,
to prepare and furnish, at the Company’s expense, to the Underwriters promptly
such amendments or supplements to such Prospectus as may be necessary to reflect
any such change or to effect such compliance;
(h) upon
request, to furnish to you one copy for each Managing Underwriter and one copy
for underwriters’ counsel copies of the Registration Statement, as initially
filed with the Commission, and of all amendments thereto (including all exhibits
thereto and documents incorporated by reference therein) and sufficient copies
of the foregoing (other than exhibits) for distribution of a copy to each of
the
other Underwriters;
(i) upon
request, to furnish to you as early as practicable prior to the time of purchase
and any additional time of purchase, as the case may be, but not later than
two
business days prior thereto, a copy of the latest available unaudited interim
and monthly consolidated financial statements, if any, of the Company and the
Subsidiary which have been read by the Company’s independent registered public
accountants, as stated in their letter to be furnished pursuant to
Section 7(e)
hereof;
(j) to
apply
the net proceeds to the Company from the sale of the Shares in the manner set
forth under the caption “Use of proceeds” in the Prospectus
Supplement;
-
17 -
(k) to
pay
all costs, expenses, fees and taxes in connection with (i) the preparation
and
filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free
Writing Prospectus and any amendments or supplements thereto, the MJDS
Prospectus and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue, sale
and delivery of the Shares including any stock or transfer taxes and stamp
or
similar duties payable upon the sale, issuance or delivery of the Shares to
the
Underwriters, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers
of Attorney and any closing documents (including compilations thereof) and
the
reproduction and/or printing and furnishing of copies of each thereof to the
Underwriters and (except closing documents) to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering and
sale under state or foreign laws and the determination of their eligibility
for
investment under state or foreign law (including the legal fees and filing
fees
and other disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to
the
Underwriters and to dealers, (v) any listing of the Shares on any securities
exchange or on the TSX and any registration thereof under the Exchange Act,
or
applicable Canadian law including any fees required to be paid to the Canadian
Regulatory Authorities, (vi) any filing for review of the public offering
of the Shares by the NASD, including the legal fees and filing fees and other
disbursements of counsel to the Underwriters relating to NASD matters,
(vii) the fees and disbursements of any transfer agent or registrar for the
Shares, (viii) the costs and expenses of the Company relating to presentations
or meetings undertaken in connection with the marketing of the offering and
sale
of the Shares to prospective investors and the Underwriters’ sales forces,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel, lodging and other expenses
incurred by the officers of the Company and any such consultants, and the cost
of any aircraft chartered in connection with the road show, (ix) the performance
of the Company’s other obligations hereunder, and (x) the fees and disbursements
of the Underwriters’ Canadian, United States and other counsel in connection
with the offering of the Shares, to a maximum of US $150,000, exclusive of
disbursements and applicable taxes;
(l) to
comply
with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act)
and with Rule 433(g) under the Act;
-
18 -
(m) beginning
on the date hereof and ending on, and including, the date that is 90 days after
the date of the Prospectus Supplement (the “Lock-Up
Period”),
without the prior written consent of Wellington and BMO Capital Markets Corp.
(“BMO”),
not
to (i) issue, sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or agree to dispose
of, directly or indirectly, or establish or increase a put equivalent position
or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, with respect to, any Common Stock or any other
securities of the Company that are substantially similar to Common Stock, or
any
securities convertible into or exchangeable or exercisable for, or any warrants
or other rights to purchase, the foregoing, (ii) file or cause to become
effective a registration statement under the Act relating to the offer and
sale
of any Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, (iii) enter into any swap or other arrangement that transfers
to
another, in whole or in part, any of the economic consequences of ownership
of
Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable
or
exercisable for, or any warrants or other rights to purchase, the foregoing,
whether any such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (iv) publicly announce an
intention to effect any transaction specified in clause (i), (ii) or (iii),
except, in each case, for (A) the registration of the offer and sale of the
Shares as contemplated by this Agreement, (B) issuances of Common Stock
upon the exercise of any rights, options or warrants disclosed as outstanding
in
the Registration Statement, each Pre-Pricing Prospectus and the Prospectus,
(C)
the issuance of stock options not exercisable during the Lock-Up Period pursuant
to stock option plans or other compensation arrangements described in the
Registration Statement, each Pre-Pricing Prospectus and the Prospectus, (D)
filing registration statements on Form S-8, (E) the issuance of securities
in
connection with acquisitions or similar transactions (and the filing of a
registration statement in connection therewith) and (F) issuances of Common
Stock, or any other securities of the Company that are substantially similar
to
Common Stock, or any securities convertible into or exchangeable or exercisable
for, or warrants or other rights to purchase, the foregoing, in satisfaction
of
any statutory or common law preemptive rights of any holders of the Company’s
Common Stock; provided,
however,
that if
(a) during the period that begins on the date that is fifteen (15) calendar
days
plus three (3) business days before the last day of the Lock-Up Period and
ends
on the last day of the Lock-Up Period, the Company issues an earnings release
or
material news or a material event relating to the Company occurs; or (b) prior
to the expiration of the Lock-Up Period, the Company announces that it will
release earnings results during the sixteen (16) day period beginning on the
last day of the Lock-Up Period, then the restrictions imposed by this Section
4(m)
shall
continue to apply until the expiration of the date that is fifteen (15) calendar
days plus three (3) business days after the date on which the issuance of the
earnings release or the material news or material event occurs;
(n) prior
to
the time of purchase, or after receiving written notice of Wellington’s
intention to exercise the Over-Allotment Option but prior to the additional
time
of purchase, as the case may be, unless required by law or regulation, to issue
no press release or other communication directly or indirectly and hold no
press
conferences with respect to the Company or the Subsidiary, the financial
condition, results of operations, business, properties, assets, or liabilities
of the Company or the Subsidiary, or the offering of the Shares, without your
prior consent, not to be unreasonably withheld;
(o) not,
at
any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the
meaning of the Act), or use any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than the
Prospectus, the Preliminary Pricing Prospectus or any Permitted Free Writing
Prospectus;
(p) not
to,
and to cause the Subsidiary not to, knowingly take, directly or indirectly,
any
action designed, or which will constitute, or has constituted, or might
reasonably be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale
of
the Shares;
-
19 -
(q) to
use
its reasonable best efforts to cause the Shares to be listed for quotation
on
the TSX and to maintain the listing of the Common Stock, including the Shares,
for quotation on the TSX for at least a period of six months following the
time
of purchase, provided that this covenant shall not restrict the Company from
entering into any subsequent transaction or reorganization; and
(r) to
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock.
5. Covenant
to Pay Costs.
The
Company agrees to pay all costs, expenses, fees and taxes in connection with
(i)
the preparation and filing of the Registration Statement, each Basic Prospectus,
each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus, each
Permitted Free Writing Prospectus and any amendments or supplements thereto,
the
MJDS Prospectus and any amendments or supplements thereto, and the printing
and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration, issue, sale
and delivery of the Shares including any stock or transfer taxes and stamp
or
similar duties payable upon the sale, issuance or delivery of the Shares to
the
Underwriters, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers
of Attorney and Custody Agreements and any closing documents (including
compilations thereof) and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the qualification of
the
Shares for offering and sale under state or foreign laws and the determination
of their eligibility for investment under state or foreign law (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky surveys
or legal investment surveys to the Underwriters and to dealers, (v) any
listing of the Shares on any securities exchange or qualification of the Shares
for quotation on the OTC and the TSX and any registration thereof under the
Exchange Act and any fees required to be paid to the Canadian Regulatory
Authorities, (vi) any filing for review of the public offering of the Shares
by
the NASD, including the legal fees and filing fees and other disbursements
of
counsel to the Underwriters relating to NASD matters, (vii) the fees and
disbursements of any transfer agent or registrar for the Shares, (viii) the
costs and expenses of the Company relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Shares to prospective investors and the Underwriters’ sales forces, including,
without limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations, travel, lodging and other expenses incurred by
the
officers of the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, (ix) the performance of the
Company’s other obligations hereunder, and (x) the fees and disbursements of the
Underwriters’ Canadian, United States and other counsel in connection with the
offering of the Shares, to a maximum of US $150,000, exclusive of disbursements
and applicable taxes.
-
20 -
6. Reimbursement
of Underwriters’ Expenses.
If the
Shares are not delivered for any reason other than the termination of this
Agreement pursuant to the fifth paragraph of Section 9
hereof
or the default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall, in addition to paying the amounts
described in Section 5
hereof,
reimburse the Underwriters for all of their out-of-pocket expenses to the extent
incurred, including the reasonable fees and disbursements of their
counsel
to a
maximum of US $150,000, exclusive of disbursements and applicable
taxes.
7. Conditions
of Underwriters’ Obligations.
The
several obligations of the Underwriters hereunder are subject to the accuracy
of
the representations and warranties on the part of the Company on the date
hereof, at the time of purchase and, if applicable, at the additional time
of
purchase, the performance by the Company of its obligations hereunder and to
the
following additional conditions precedent:
(a) The
Company shall furnish to you at the time of purchase and, if applicable, at
the
additional time of purchase, an opinion of Shearman & Sterling LLP, United
States counsel for the Company, addressed to the Underwriters, and dated the
time of purchase or the additional time of purchase, as the case may be, with
executed copies for each of the other Underwriters, and in form and substance
satisfactory to the Underwriters.
(b) The
Company shall furnish to you at the time of purchase and, if applicable, at
the
additional time of purchase, an opinion of Xxxxxx Xxxxxxx LLP, Idaho counsel
for
the Company, addressed to the Underwriters, and dated the time of purchase
or
the additional time of purchase, as the case may be, with executed copies for
each of the other Underwriters, and in form and substance satisfactory to the
Underwriters.
(c) The
Company shall furnish to you at the time of purchase and, if applicable, at
the
additional time of purchase, an opinion of Xxxx Xxxxxxxx Xxxxx Xxx &
Xxxxxxxx, Nevada counsel for the Company, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the case
may
be, with executed copies for each of the other Underwriters, and in form and
substance satisfactory to the Underwriters.
(d) The
Company shall furnish to you at the time of purchase and, if applicable, at
the
additional time of purchase, an opinion of Xxxx Xxxxxxxx Xxxxx Xxx &
Xxxxxxxx, special title counsel for the Company, addressed to the Underwriters,
and dated the time of purchase or the additional time of purchase, as the case
may be, with executed copies for each of the other Underwriters, and in form
and
substance satisfactory to the Underwriters.
(e) You
shall
have received from HJ & Associates, LLC letters dated, respectively, the
date of this Agreement, the date of the Prospectus Supplement, the time of
purchase and, if applicable, the additional time of purchase, and addressed
to
the Underwriters (with executed copies for each of the Underwriters) in the
forms satisfactory to the Underwriters, which letters shall cover, without
limitation, the various financial disclosures contained in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any.
-
21 -
(f) You
shall
have received at the time of purchase and, if applicable, at the additional
time
of purchase, the favorable opinion of White & Case LLP, counsel for the
Underwriters, dated the time of purchase or the additional time of purchase,
as
the case may be, in form and substance reasonably satisfactory to the
Underwriters.
(g) The
Registration Statement and any registration statement required to be filed,
prior to the sale of the Shares, under the Act pursuant to Rule 462(b) shall
have been filed and shall have become effective under the Act. The Prospectus
Supplement shall have been filed with the Commission pursuant to Rule 424(b)
under the Act at or before 5:30 P.M., New York City time, on the second full
business day after the date of this Agreement (or such earlier time as may
be
required under the Act).
(h) At
the
time of purchase, and, if applicable, the additional time of purchase, (i)
no
stop order with respect to the effectiveness of the Registration Statement
shall
have been issued and remain effective under the Act or proceedings initiated
(and not revoked) under Section 8(d) or 8(e) of the Act; (ii) the Registration
Statement and all amendments thereto shall not contain an untrue statement
of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading; (iii) none of the
Pre-Pricing Prospectuses or the Prospectus, and no amendment or supplement
thereto, shall include an untrue statement 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 under which they are made, not misleading; (iv) no Disclosure
Package, and no amendment or supplement thereto, shall include an untrue
statement 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 under which
they are made, not misleading; and (v) none of the Permitted Free Writing
Prospectuses, if any, shall include an untrue statement 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 under which they are made, not
misleading.
(i) The
Company will, at the time of purchase and, if applicable, at the additional
time
of purchase, deliver to you a certificate of its Chief Executive Officer and
its
Chief Financial Officer, dated the time of purchase or the additional time
of
purchase, as the case may be, in the form attached as Exhibit
B
hereto.
(j) You
shall
have received each of the signed Lock-Up Agreements referred to in Section
3(t)
hereof,
and each such Lock-Up Agreement shall be in full force and effect at the time
of
purchase and the additional time of purchase, as the case may be.
(k) The
Company shall have furnished to you such other documents and certificates as
to
the accuracy and completeness of any statement in the Registration Statement,
any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus as of the time of purchase and, if applicable, the additional time
of
purchase, as you may reasonably request.
-
22 -
(l) The
Shares shall have been conditionally approved for listing on the TSX prior
to
closing, subject to standard conditions of the TSX.
(m) The
National Association of Securities Dealers, Inc. (the “NASD”)
shall
not have raised any objection with respect to the fairness or reasonableness
of
the underwriting, or other arrangements of the transactions, contemplated
hereby.
8. Effective
Date of Agreement; Termination.
This
Agreement shall become effective when the parties hereto have executed and
delivered this Agreement.
The
obligations of each of the several Underwriters hereunder shall be subject
to
termination in the absolute discretion of the respective Underwriter, if (1)
since the time of execution of this Agreement there has been any change in
the
business, properties, financial condition or results of operations of the
Company and the Subsidiary taken as a whole, the effect of which change is,
in
the sole judgment of the respective Underwriter, so material and adverse as
to
make it impractical or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, or (2) since the time of execution
of this Agreement, there shall have occurred: (A) a suspension or material
limitation in trading in securities generally on the TSX or the issuance of
a
cease trade order by the Canadian Regulatory Authorities; (B) a suspension
or
material limitation in trading in the securities on the TSX; (C) a general
moratorium on commercial banking activities declared by either federal or New
York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States or Canada;
(D)
an outbreak or escalation of hostilities or acts of terrorism involving the
United States or a declaration by the United States of a national emergency
or
war; or (E) any other calamity or crisis, political or economic conditions
in
the United States, Canada or elsewhere, if the effect of any such event
specified in clause (D) or (E), in the sole judgment of the respective
Underwriter, makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any.
If
any of
the several Underwriters elects to terminate its obligations hereunder as
provided in this Section 8,
the
Company and each other Underwriter shall be notified promptly in writing.
In
such a circumstance, the other non-terminating Underwriters shall have the
right, but shall not be obligated, to purchase, all but not less than all,
of
the Shares which would otherwise have been purchased by the terminating
Underwriter that has terminated its obligations hereunder. If, with respect
to
the Shares any non-terminating Underwriter elects not to exercise such right
so
as to assume the entire obligation of the terminating Underwriter (the Shares
in
respect of which the terminating Underwriter fails to purchase and the
non-terminating Underwriters do not elect to purchase being hereinafter called
the “Default
Shares”),
then
the Company shall have the right to either (1) proceed with the sale of the
Shares (less the Default Shares) to the non-terminating Underwriters, or
(2)
terminate its obligations hereunder without liability to the non-terminating
Underwriters except under section 10. Nothing in this paragraph shall oblige
the
Company to sell to any of the Underwriters less than all of the Shares or
shall
relieve any of the Underwriters in default hereunder from any liability to
the
Company.
Except
as
contemplated in the previous paragraph, if the sale to the Underwriters of
the Shares, as contemplated by this Agreement, is not carried out by the
Underwriters for any reason permitted under this Agreement, or if such sale
is
not carried out because the Company shall be unable to comply with any of
the
terms of this Agreement, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in
Sections 5,
6
and
10
hereof),
and the Underwriters shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 10
hereof)
or to one another hereunder.
9. Increase
in Underwriters’ Commitments.
Subject
to Sections 7
and
8
hereof,
if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for a failure of
a
condition set forth in Section 7
hereof
or a reason sufficient to justify the termination of this Agreement under the
provisions of Section 8
hereof)
and if the number of Firm Shares which all Underwriters so defaulting shall
have
agreed but failed to take up and pay for does not exceed 10% of the total number
of Firm Shares, the non-defaulting Underwriters (including the Underwriters,
if
any, substituted in the manner set forth below) shall take up and pay for (in
addition to the aggregate number of Firm Shares they are obligated to purchase
pursuant to Section 1
hereof)
the number of Firm Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be taken up and paid
for by such non-defaulting Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event
no
such designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number
of
Firm Shares set forth opposite the names of such non-defaulting Underwriters
in
Schedule
A.
-
23 -
Without
relieving any defaulting Underwriter from its obligations hereunder, the Company
agrees with the non-defaulting Underwriters that it will not sell any Firm
Shares hereunder unless all of the Firm Shares are purchased by the Underwriters
(or by substituted Underwriters selected by you with the approval of the Company
or selected by the Company with your approval).
If
a new
Underwriter or Underwriters are substituted by the Underwriters or by the
Company for a defaulting Underwriter or Underwriters in accordance with the
foregoing provision, the Company or you shall have the right to postpone the
time of purchase for a period not exceeding five business days in order that
any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The
term
“Underwriter” as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 9
with
like effect as if such substituted Underwriter had originally been named in
Schedule
A
hereto.
If
the
aggregate number of Firm Shares which the defaulting Underwriter or Underwriters
agreed to purchase exceeds 10% of the total number of Firm Shares which all
Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Firm Shares which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability
on the part of the Company to any Underwriter and without any liability on
the
part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. Indemnity
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against
any loss, damage, expense, liability or claim (including the reasonable cost
of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the securities legislation
of
the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,
New
Brunswick, Nova Scotia, Xxxxxx Xxxxxx Island, Newfoundland and Labrador, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any breach or alleged breach by the
Company of the provisions of the Idaho Business Corporations Act (and its
predecessor statutes) applicable to it relating to shareholder preemptive
rights, (ii) any untrue statement or alleged untrue statement of a material
fact
contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or arises out
of
or is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, damage, expense, liability or
claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in, and in conformity with information furnished
in
writing by or on behalf of any Underwriter through you to the Company expressly
for use in, the Registration Statement or arises out of or is based upon any
omission or alleged omission to state a material fact in the Registration
Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated
in such Registration Statement or was necessary to make such information not
misleading or (iii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose
of
this Section 10
being
deemed to include any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus and any amendments or supplements to
the
foregoing), the MJDS Prospectus and any amendments or supplements thereto,
in
any Permitted Free Writing Prospectus, in any “issuer information” (as defined
in Rule 433 under the Act) of the Company or in any Prospectus together with
any
combination of one or more of the Permitted Free Writing Prospectuses, if any,
or arises out of or is based upon any omission or alleged omission to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading, except, with
respect to such Prospectus, Permitted Free Writing Prospectus, MJDS Prospectus
or issuer information, insofar as any such loss, damage, expense, liability
or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in, such Prospectus,
Permitted Free Writing Prospectus, MJDS Prospectus or issuer information or
arises
out of or is based upon any omission or alleged omission to state a material
fact in such Prospectus, Permitted Free Writing Prospectus, MJDS Prospectus
or
issuer information in connection with such information, which material fact
was
not contained in such information and which material fact was necessary in
order
to make the statements in such information, in the light of the circumstances
under which they were made, not misleading.
-
24 -
(b) Each
Underwriter severally agrees to indemnify, defend and hold harmless the Company,
its directors and officers, and any person who controls the Company within
the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person
may
incur under the Act, the Exchange Act, the common law or otherwise, insofar
as
such loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company),
or
arises out of or is based upon any omission or alleged omission to state a
material fact in such Registration Statement in connection with such
information, which material fact was not contained in such information and
which
material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue statement
or alleged untrue statement of a material fact contained in, and in conformity
with information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in,
a
Prospectus, a Permitted Free Writing Prospectus, MJDS Prospectus or issuer
information or arises out of or is based upon any omission or alleged omission
to state a material fact in such Prospectus, Permitted Free Writing Prospectus,
MJDS Prospectus or issuer information in connection with such information,
which
material fact was not contained in such information and which material fact
was
necessary in order to make the statements in such information, in the light
of
the circumstances under which they were made, not misleading.
(c) If
any
action, suit or proceeding (each, a “Proceeding”)
is
brought against a person (an “indemnified
party”)
in
respect of which indemnity may be sought against the Company or an Underwriter
(as applicable, the “indemnifying
party”)
pursuant to subsection (a) or (b),
respectively, of this Section 10,
such
indemnified party shall promptly notify such indemnifying party in writing
of
the institution of such Proceeding and such indemnifying party shall assume
the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided,
however,
that
the omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have
to
any indemnified party or otherwise. The indemnified party or parties shall
have
the right to employ its or their own counsel in any such case, but the fees
and
expenses of such counsel shall be at the expense of such indemnified party
or
parties unless the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such
Proceeding or the indemnifying party shall not have, within a reasonable period
of time in light of the circumstances, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from,
additional to or in conflict with those available to such indemnifying party
(in
which case such indemnifying party shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties),
in
any of which events such fees and expenses shall be borne by such indemnifying
party and paid as incurred (it being understood, however, that such indemnifying
party shall not be liable for the expenses of more than one separate counsel
(in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The indemnifying party shall not be liable
for
any settlement of any Proceeding effected without its written consent but,
if
settled with its written consent, such indemnifying party agrees to indemnify
and hold harmless the indemnified party or parties from and against any loss
or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this Section 10(c),
then
the indemnifying party agrees that it shall be liable for any settlement of
any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying
party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days’ prior notice of its intention to settle.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of any Proceeding effected without its consent
if such indemnifying party (i) reimburses such indemnified party in accordance
with such request to the extent it considers such request to be reasonable
and
(ii) provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include
an
admission of fault or culpability or a failure to act by or on behalf of such
indemnified party.
-
25 -
(d) If
the
indemnification provided for in this Section 10
is
unavailable to an indemnified party under subsections (a)
and (b)
of this Section 10
or
insufficient to hold an indemnified party harmless in respect of any losses,
damages, expenses, liabilities or claims referred to therein, then each
applicable indemnifying party shall contribute to the amount paid or payable
by
such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements
or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend
or
defending any Proceeding.
(e) The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 10
were
determined by pro rata allocation (even if the Underwriters were treated as
one
entity for such purpose) or by any other method of allocation that does not
take
account of the equitable considerations referred to in subsection (d)
above.
Notwithstanding the provisions of this Section 10,
no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount
of
any damage which such Underwriter has otherwise been required to pay by reason
of such untrue statement or alleged untrue statement or omission or alleged
omission.
No
person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Act) shall be entitled to contribution from any person who was not guilty
of
such fraudulent misrepresentation. The Underwriters’ obligations to contribute
pursuant to this Section 10
are
several in proportion to their respective underwriting commitments and not
joint.
(f) The
indemnity and contribution agreements contained in this Section 10
and the
covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, its partners, directors or officers
or
any person (including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, or by or on behalf of the Company, its directors or
officers or any person who controls the Company within the meaning of Section
15
of the Act or Section 20 of the Exchange Act, and shall survive any termination
of this Agreement or the issuance and delivery of the Shares. The Company and
each Underwriter agree promptly to notify each other of the commencement of
any
Proceeding against it and, in the case of the Company, against any of the
Company’s officers or directors in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement, any Basic Prospectus,
any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus.
-
26 -
11. Notices.
Except
as otherwise herein provided, all statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Underwriters,
shall be sufficient in all respects if delivered or sent to Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxxxx, (XXX) Inc., 000 Xxxx Xxxxxx Xxxx, Xxxx 000, Xxxxxxx, Xxxxxxx,
Xxxxxx M5H 1J8, Attention: Xxxx Xxxxxxxxxx, and, if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices
of
the Company at 0 Xxxxx Xxxxxx Xxxx, Xxxxx 0000, P.O. Box 110 Toronto, Ontario,
Canada X0X 0X0, Attention: Xxxxxxx Xxxxxxxxx, President, Chief Executive Officer
and Director.
12. Governing
Law; Construction.
This
Agreement and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
(“Claim”),
directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have
been inserted as a matter of convenience of reference and are not a part of
this
Agreement.
13. Waiver
of Right to Trial by Jury.
Each
Underwriter and the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its shareholders waive all right to trial by jury
in any action, proceeding or counterclaim (whether based upon contract, tort
or
otherwise) in any way arising out of or relating to this Agreement.
14. Parties
at Interest.
The
Agreement herein set forth has been and is made solely for the benefit of the
Underwriters and the Company and to the extent provided in
Section 10
hereof
the controlling persons, partners, directors and officers referred to in such
Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from
any
of the Underwriters) shall acquire or have any right under or by virtue of
this
Agreement.
15. No
Fiduciary Relationship.
The
Company hereby acknowledges that the Underwriters are acting solely as
underwriters in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm’s length basis, and in no event do the parties intend that the
Underwriters act or be responsible as a fiduciary to the Company, its
management, stockholders or creditors or any other person in connection with
any
activity that the Underwriters may undertake or have undertaken in furtherance
of the purchase and sale of the Company’s securities, either before or after the
date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar
obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that effect.
The Company and the Underwriters agree that they are each responsible for making
their own independent judgments with respect to any such transactions and that
any opinions or views expressed by the Underwriters to the Company regarding
such transactions, including, but not limited to, any opinions or views with
respect to the price or market for the Company’s securities, do not constitute
advice or recommendations to the Company. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that the Company
may have against the Underwriters with respect to any breach or alleged breach
of any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions.
-
27 -
16. Counterparts.
This
Agreement may be signed by the parties in one or more counterparts which
together shall constitute one and the same agreement among the
parties.
17. Successors
and Assigns.
This
Agreement shall be binding upon the Underwriters and the Company and their
successors and assigns and any successor or assign of any substantial portion
of
the Company’s and any of the Underwriters’ respective businesses and/or
assets.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
-
28 -
If
the
foregoing correctly sets forth the understanding between the Company and the
several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and your acceptance shall constitute a binding
agreement between the Company and the Underwriters, severally.
|
|
|
|
|
Very
truly yours,
WESTERN
GOLDFIELDS, INC.
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxx | |
|
Name: Xxxxx Xxxxx |
||
| Title: Chief Financial Officer | ||
Accepted
and agreed to as of the date first above written, on behalf of themselves
and
the other several Underwriters named in Schedule A
WELLINGTON
WEST CAPITAL
MARKETS
(USA) INC.
| By: | /s/ Xxxx Xxxxxxxx | |||
|
Name: Xxxx Xxxxxxxx |
||||
| Title: President |
BMO
CAPITAL
MARKETS CORP.
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
|
Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Managing Director & Global Group Head, Metals & Mining |
RBC
CAPITAL MARKETS CORPORATION
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
|
Name: Xxxxxxx Xxxxxxxx |
||||
| Title: Managing Director |
GMP
SECURITIES L.P.
| By: | /s/ Xxxx Xxxxxxxx | |||
|
Name: Xxxx Xxxxxxxx |
||||
| Title: Managing Director |
RESEARCH
CAPITAL USA INC.
| By: | /s/ Xxxxxx Xxxxxx | |||
|
Name: Xxxxxx Xxxxxx |
||||
| Title: Chief Financial Officer |
SCHEDULE
A
|
Underwriter
|
Number
of Firm Shares
|
|||
|
WELLINGTON
WEST CAPITAL MARKETS (USA) INC.
|
9,334,500
|
|||
|
BMO
CAPITAL MARKETS CORP.
|
9,334,500
|
|||
|
RBC
CAPITAL MARKETS CORPORATION
|
6,223,000
|
|||
|
GMP
SECURITIES L.P.
|
3,111,500
|
|||
|
RESEARCH
CAPITAL USA INC.
|
3,111,500
|
|||
|
Total
|
31,115,000
|
|||
SCHEDULE
B
The
Company’s Issuer Free Writing Prospectus dated January 18, 2007 Relating to the
Pre-Pricing Prospectus.
SCHEDULE
C
CANADIAN
OFFERS AND SALES
1. Certain
Representations and Warranties of the Company.
The
Company represents and warrants to and agrees with each of the Underwriters
that:
(a) the
Company is eligible to file a “preliminary
MJDS prospectus”,
an
“MJDS
prospectus”,
“an
amendment to a preliminary MJDS prospectus”,
and
“an
amendment to an MJDS prospectus”
for
a
distribution of Shares in Canada under Canadian National Instrument 71-101
(“NI
71-101”);
(b) the
Company has filed all documents required to be filed by it under Canadian
National Instrument 51-102 and at the time of such filing, such documents did
not contain a misrepresentation as defined under the Securities
Act
(Ontario) (a “Misrepresentation”);
(c) the
Company is an “SEC Foreign Issuer” as such term is defined in Canadian National
Instrument 71-102 (“NI
71-102”),
was
at the time of any filing of any document under NI 71-102 eligible to do so;
and
(d) the
Company is not the subject of a cease trade order, or management cease trade
order, issued by the Canadian Regulatory Authorities, or any of them, and the
Company is, to the best of its knowledge, not aware of any such order being
contemplated or threatened by the Canadian Regulatory Authorities, or any of
them.
2. Certain
Covenants of the Company.
The
Company hereby agrees:
(a) The
Company shall file with the Canadian Regulatory Authorities the Pre-Pricing
Prospectus and the Prospectus Supplement, with such modifications, amendments
or
supplements as are required under NI 71-101 in order to permit the distribution,
or distribution to the public, of Shares in the Canadian jurisdictions over
which the Canadian Securities Regulatory Authorities have jurisdiction (the
“Qualifying
Canadian Jurisdictions”).
(b) The
Company shall make the filings with the Canadian Regulatory Authorities
contemplated in Section 2(a) concurrently with any related filing made by the
Company with the Commission, or as promptly as possible thereafter.
(c) The
Company will comply with the provisions of NI 71-101 and file, within the time
periods required by NI 71-101, such additional certificates, documents,
documents incorporated by reference, and any other materials required by NI
71-101 so as to qualify, or continue to qualify, the Shares for distribution,
or
distribution to the public, in the Qualifying Canadian Jurisdictions.
Schedule
C
Page
2
(d) The
Company will make available to the Underwriters or their affiliates at such
locations in Canada that they may reasonably request, as many copies of the
MJDS
Prospectus as amended or supplemented in accordance with NI 71-101 as the
Underwriters or their affiliates may reasonably request for the purposes
contemplated by applicable Canadian securities laws.
3. Certain
Covenants of the Underwriters.
The Underwriters hereby severally agree:
(a) During
the period of distribution, or distribution to the public, of the Shares by
or
through the Underwriters, the Underwriters will offer and sell Shares to the
public in Canada in the Qualifying Canadian Jurisdictions only and otherwise
on
the terms and conditions set forth in this Agreement. For the purposes of this
Section 3(a), the Underwriters and their affiliates shall be entitled to assume
that the Shares are qualified for distribution in any Qualifying Canadian
Jurisdiction where an MRRS Decision Document has been issued with respect to
an
MJDS prospectus or an amendment to an MJDS prospectus, including the MJDS
Prospectus.
(b) The
Underwriters will comply with the securities laws of the Qualifying Canadian
Jurisdictions in connection with the offer to sell and the distribution, or
distribution to the public, of the Shares, in such jurisdictions.
(c)
The
Underwriters will only solicit purchasers, make offers and complete sales of
Shares in the Qualifying Canadian Jurisdictions through affiliates of the
Underwriters duly registered under applicable Canadian securities laws as an
investment dealer, or in any other category of registration that permits
solicitations, offers, and sales of shares to the public in the Qualifying
Canadian Jurisdictions (the “Underwriters’
Canadian Affiliates”).
(d) The
Underwriters, and the Underwriters’ Canadian Affiliates, will comply with the
provisions of NI 71-101 and other Canadian securities laws applicable to them,
and will file, or cause to be filed, within the time periods required by NI
71-101 or otherwise under Canadian securities law, such certificates and any
other materials required by NI 71-101 or otherwise under Canadian securities
law
to be filed by them.
After
the time of purchase, the Underwriters and the Underwriters’ Canadian affiliates
shall:
(a)
Use
all
reasonable efforts to complete the distribution of the Shares as promptly
as possible; and
(b)
Give
prompt written notice to the Company when, in the opinion of the Underwriters,
they have completed distribution of the Shares and include a breakdown of
the
gross
proceeds realized therefrom in each of the Qualifying Canadian
Jurisdictions.
SCHEDULE
D
LIST
OF
SENIOR OFFICERS SUBJECT TO LOCK-UP AGREEMENTS
Xxxxxxx
Xxxxxxxx
Xxx
Xxxxxxxxx
Xxxxx
Xxxxx
Xxxxxx
Xxxx
Xxxxxx
Konig
Xxxxx
Xxxxxxxx
EXHIBIT
A
Lock-Up
Agreement
January
18, 0000
Xxxxxxxxxx
Xxxx Xxxxxxx Xxxxxxx (XXX) Inc.
Together
with the other Underwriters
named
in
Schedule A to the Underwriting Agreement
referred
to herein
c/o
Wellington West Capital Markets Inc.
000
Xxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
XX
Xxxxxx,
X0X 0X0
Ladies
and Gentlemen:
This
Lock-Up Agreement is being delivered to you in connection with the proposed
Underwriting Agreement (the “Underwriting
Agreement”)
to be
entered into by Western Gold Fields, Inc., an Idaho corporation (the
“Company”)
and
you and the other underwriters named in Schedule A to the Underwriting
Agreement, with respect to the public offering (the “Offering”)
of
common stock, par value $0.01 per share, of the Company (the “Common
Stock”).
In
order
to induce you to enter into the Underwriting Agreement, the undersigned agrees
that, for a period (the “Lock-Up
Period”)
beginning on the date hereof and ending on, and including, the date that is
90
days after the date of the final prospectus supplement relating to the Offering,
the undersigned will not, without the prior written consent of Wellington West
Capital Markets (USA) Inc. and BMO Capital Markets Corp., (i) sell, offer to
sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or file (or participate in the filing of) a registration statement with the
Securities and Exchange Commission (the “Commission”)
in
respect of, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Commission promulgated thereunder (the “Exchange
Act”)
with
respect to, any Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, (ii) enter into any swap or other arrangement that transfers
to
another, in whole or in part, any of the economic consequences of ownership
of
Common Stock or any other securities of the Company that are substantially
similar to Common Stock, or any securities convertible into or exchangeable
or
exercisable for, or any warrants or other rights to purchase, the foregoing,
whether any such transaction is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (iii) publicly announce an
intention to effect any transaction specified in clause (i) or (ii). The
foregoing sentence shall not apply to (a) the registration of the offer and
sale
of Common Stock as contemplated by the Underwriting Agreement and the sale
of
the Common Stock to the Underwriters (as defined in the Underwriting Agreement)
in the Offering, (b) bona fide gifts, provided the recipient thereof agrees
in
writing with the Underwriters to be bound by the terms of this Lock-Up
Agreement, (c) dispositions to the immediate family of the undersigned or to
any
trust for the direct or indirect benefit of the undersigned and/or the immediate
family of the undersigned, provided that such trust agrees in writing with
the
Underwriters to be bound by the terms of this Lock-Up Agreement, (d)
dispositions of securities acquired in open market transactions subsequent
to
the date hereof, or (e) participation in tenders involving a majority of the
Company’s Common Stock. For purposes of this paragraph, “immediate family” shall
mean the undersigned and the spouse, any lineal descendent, father, mother,
brother or sister of the undersigned.
X-
0
In
addition, the undersigned hereby waives any rights the undersigned may have
to
require registration of Common Stock in connection with the filing of a
registration statement relating to the Offering. The undersigned further agrees
that, for the Lock-Up Period, the undersigned will not, without the prior
written consent of Wellington West Capital Markets Corp. and BMO Capital Markets
Corp., make any demand for, or exercise any right with respect to, the
registration of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock or any such securities.
Notwithstanding
the above, if (a) during the period that begins on the date that is fifteen
(15)
calendar days plus three (3) business days before the last day of the Lock-Up
Period and ends on the last day of the Lock-Up Period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs; or (b) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the sixteen (16) day
period beginning on the last day of the Lock-Up Period, then the restrictions
imposed by this Lock-Up Agreement shall continue to apply until the expiration
of the date that is fifteen (15) calendar days plus three (3) business days
after the date on which the issuance of the earnings release or the material
news or material event occurs.
*
*
*
X-
0
If
(i)
the Company notifies you in writing that it does not intend to proceed with
the
Offering, (ii) the registration statement filed with the Commission with respect
to the Offering is withdrawn or (iii) for any reason the Underwriting Agreement
shall be terminated prior to the “time of purchase” (as defined in the
Underwriting Agreement), this Lock-Up Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
| |
|
Yours
very truly, |
|
Name: |
||
X-
0
EXHIBIT
B
OFFICERS’
CERTIFICATE
Each
of
the undersigned, Xxxxxxx Xxxxxxxxx, President and Chief Executive Officer of
Western Gold Fields, Inc., an Idaho corporation (the “Company”),
and
Xxxxx Xxxxx, Chief Financial Officer of the Company, on behalf of the Company,
does hereby certify pursuant to Section 7(i)
of that
certain Underwriting Agreement dated January __, 2007 (the “Underwriting
Agreement”)
between the Company and, on behalf of the several Underwriters named therein,
Wellington West Capital Markets (USA) and BMO Capital Markets Corp., that as
of
January __, 2007:
| 1. |
He
has reviewed the Registration Statement, each Pre-Pricing Prospectus,
the
Prospectus and each Permitted Free Writing
Prospectus.
|
| 2. |
The
representations and warranties of the Company as set forth in the
Underwriting Agreement are true and correct as of the date hereof
and as
if made on the date hereof.
|
| 3. |
The
Company has performed all of its obligations under the Underwriting
Agreement as are to be performed at or before the date
hereof.
|
| 4. |
The
conditions set forth in paragraph (h)
of
Section 7
of
the Underwriting Agreement have been
met.
|
Capitalized
terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
In
Witness Whereof,
the
undersigned have hereunto set their hands on this January __, 2007.
| Name: | Xxxxxxx Xxxxxxxxx | |
|
Title:
|
President and Chief Executive | |
|
Officer
|
||
| Name: | Xxxxx Xxxxx | |
| Title: | Chief Financial Officer |
B-
1
