UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE
13a-16 or 15d-16 UNDER THE
SECURITIES EXCHANGE ACT OF 1934
For the month of January, 2015.
Commission File Number 001-36204
ENERGY FUELS INC.
(Translation
of registrant’s name into English)
225 Union Blvd., Suite 600
Lakewood, CO 80228
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file
annual reports under cover Form 20-F or Form 40-F
Form 20-F [
] Form 40-F [X]
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule 101(b)(1): [ ]
Note: Regulation S-T Rule 101(b)(1) only permits the
submission in paper of a Form 6-K if submitted solely to provide an attached
annual report to security holders.
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule 101(b)(7): [ ]
Note: Regulation S-T Rule 101(b)(7) only permits the
submission in paper of a Form 6-K if submitted to furnish a report or other
document that the registrant foreign private issuer must furnish and make public
under the laws of the jurisdiction in which the registrant is incorporated,
domiciled or legally organized (the registrant’s “home country”), or under the
rules of the home country exchange on which the registrant’s securities are
traded, as long as the report or other document is not a press release, is not
required to be and has not been distributed to the registrant’s security
holders, and, if discussing a material event, has already been the subject of a
Form 6-K submission or other Commission filing on EDGAR.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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ENERGY FUELS INC. |
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| Date: January 20, 2015 |
/S/ David C.
Frydenlund
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David C. Frydenlund |
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Senior Vice President, General Counsel
& Corporate Secretary |
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INDEX TO EXHIBITS
| | 99.1 | Material Change Report dated January 14, 2015
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| | 99.2 | Agreement and Plan of Merger by and Among Energy Fuels Inc, EFR Nevada Corp. and Uranerz Energy Corporation dated as of January 4, 2015
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| | 99.3 | Support Agreement dated January 4, 2015 between Bruce D. Hansen and Uranerz Energy Corporation
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| | 99.4 | Support Agreement dated January 4, 2015 between David C. Frydenlund and Uranerz Energy Corporation
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| | 99.5 | Support Agreement dated January 4, 2015 between J. Birks Bovaird and Uranerz Energy Corporation
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| | 99.6 | Support Agreement dated January 4, 2015 between Daniel G. Zang and Uranerz Energy Corporation
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99.7 |
Support Agreement dated January 4, 2015 between Harold R. Roberts and Uranerz Energy Corporation
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99.8 |
Support Agreement dated January 4, 2015 between Larry Goldberg and Uranerz Energy Corporation
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99.9 |
Support Agreement dated January 4, 2015 between Mark Goodman and Uranerz Energy Corporation
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99.10 |
Support Agreement dated January 4, 2015 between Ron F. Hochstein and Uranerz Energy Corporation
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99.11 |
Support Agreement dated January 4, 2015 between Stephen P. Antony and Uranerz Energy Corporation
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99.12 |
Support Agreement dated January 4, 2015 between Paul A. Carroll and Uranerz Energy Corporation
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99.13 |
Support Agreement dated January 4, 2015 between Richard J. Patricio and Uranerz Energy Corporation
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99.14 |
Support Agreement dated January 4, 2015 between Tae Hwan Kim and Uranerz Energy Corporation
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99.15 |
Support Agreement dated January 4, 2015 between Arnold Jacob Dyck and Energy Fuels Inc.
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99.16 |
Support Agreement dated January 4, 2015 between Benjamin Leboe and Energy Fuels Inc.
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99.17 |
Support Agreement dated January 4, 2015 between Dennis Lyle Higgs and Energy Fuels Inc.
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99.18 |
Support Agreement dated January 4, 2015 between Gerhard F. Kirchner and Energy Fuels Inc.
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99.19 |
Support Agreement dated January 4, 2015 between Douglas Hirschman and Energy Fuels Inc.
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99.20 |
Support Agreement dated January 4, 2015 between Glenn Catchpole and Energy Fuels Inc.
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99.21 |
Support Agreement dated January 4, 2015 between Glenda Thomas and Energy Fuels Inc.
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99.22 |
Support Agreement dated January 4, 2015 between Mike Thomas and Energy Fuels Inc.
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99.23 |
Support Agreement dated January 4, 2015 between Paul Saxton and Energy Fuels Inc.
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99.24 |
Support Agreement dated January 4, 2015 between Peter Bell and Energy Fuels Inc.
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99.25 |
Support Agreement dated January 4, 2015 between W. Paul Goranson and Energy Fuels Inc.
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99.26 |
Support Agreement dated January 4, 2015 between
Bruce Larsen and Energy Fuels Inc. |
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99.27 |
News Release dated January 19, 2015 |
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Exhibit 99.1
FORM 51-102F3
MATERIAL CHANGE REPORT
| 1. |
Name and Address of Company: |
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Energy Fuels Inc. (“Energy Fuels”)
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2 Toronto Street, Suite 500 |
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Toronto, Ontario |
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M5C 2B6 |
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| 2. |
Date of Material Change: |
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January 5, 2015 |
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| 3. |
News Release: |
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A news release announcing this material change was issued
on January 5, 2015 through Marketwire and a copy was filed on SEDAR.
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| 4. |
Summary of Material Change: |
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On January 5, 2015, Energy Fuels announced the signing of
a definitive agreement (the “Definitive Agreement”) with Uranerz
Energy Corporation (“Uranerz”) pursuant to which Energy Fuels will
acquire all of the issued and outstanding shares of common stock of
Uranerz (the “Transaction”). Under the terms of the Definitive
Agreement, shareholders of Uranerz will receive 0.255 common shares of
Energy Fuels for each share of Uranerz common stock held. |
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| 5. |
5.1 - Full Description of Material Change:
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On January 5, 2015, Energy Fuels announced the signing of
the definitive agreement pursuant to which Energy Fuels will acquire all
of the issued and outstanding shares of common stock of Uranerz. Under the
terms of the Definitive Agreement, shareholders of Uranerz will receive
0.255 common shares of Energy Fuels for each share of Uranerz common stock
held. |
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Unique Position in the United States’ Nuclear Power
Market |
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The combination of Energy Fuels and Uranerz will result
in the creation of the largest integrated uranium production company
focused solely on the United States. Energy Fuels, after completing the
Transaction, is referred to in this release as the “Company”. The
United States is the largest consumer of uranium globally, with 100
nuclear reactors currently in operation and five under construction. Yet,
despite being the World’s largest producer of uranium as recently as the
early 1980s, the U.S. is now heavily reliant on imported uranium to fuel
its reactor fleet. Energy Fuels and Uranerz believe that the Company will
be well-positioned, in terms of size, operational scale and
diversification, as a preferred U.S. uranium supplier. |
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Based on the current share price of Energy Fuels, the
Company will be the largest publicly-traded uranium company by market
capitalization operationally focused and listed in the U.S. This is
expected to increase exposure to both institutional and retail investors
globally, as well as increase the likelihood of the combined company
(subject to market conditions) being included and/or receiving greater
weightings in certain indices, such as the Russell 3000 Index, as well as
certain Exchange Traded Funds such as the Global X Uranium ETF (NYSE:
URA). |
Large and Diversified Combined
Operations
Energy Fuels is currently
well-positioned as the 2nd largest supplier of uranium within the U.S. It
currently accounts for about 20% of U.S. uranium production from its
wholly-owned White Mesa uranium mill, the only licensed and operating
conventional uranium mill in the U.S. Uranerz is the newest uranium producer in
the U.S., located in one of the most prolific areas of uranium production in the
U.S. Uranerz recently commenced production at its Nichols Ranch ISR Uranium
Project and holds one of the largest prospective land positions for in-situ
recovery (“ISR”) amenable deposits in Wyoming. The Company will have
a combined ISR and conventional asset base, unique in its scope and scalability,
extending from the ISR-amenable Powder River Basin of Wyoming (the
“Basin”) to the conventional uranium mining districts of New Mexico,
Colorado, Utah and Arizona. ISR uranium production in the Basin is acknowledged
as a source of relatively lower cost uranium production, and large
multi-national companies such as Cameco Corporation and Uranium One Inc. are
active in the Basin. The combined asset base of the Company, anchored by two
distinct production centers, will be better positioned to create shareholder
value in the current low uranium price environment while maintaining what Energy
Fuels and Uranerz believe is substantial organic production growth potential at
higher uranium prices.
Uranium Supply Contract Portfolio
The Company expects to have a total of
six uranium supply contracts with terms that extend into 2020. In 2015 alone,
these contracts require approximately one million pounds of uranium to be
delivered at an average price of approximately US$58 per pound, a premium of
approximately 63% above the uranium spot price of US$35.50 per pound as at the
date of announcement of the Transaction. This combined contract portfolio will
position the Company to maximize revenues in the current low uranium price
environment.
Transaction Details
Based on the current common shares
outstanding of both Energy Fuels and Uranerz, Energy Fuels shareholders will own
approximately 45% of the shares of the Company upon completion of the
Transaction, and Uranerz shareholders will own approximately 55% of the common
shares of the Company. Based on the January 2, 2015 closing prices on the NYSE
MKT and the 20-day volume-weighted average prices on the NYSE MKT through to
January 2, 2015, the Transaction represents a 37% and 46% premium, respectively,
to Uranerz shareholders.
The Transaction will be carried out by
way of a merger of Uranerz with, and into, a subsidiary of Energy Fuels under
Nevada law. The Transaction will be subject to the approval of a majority of the
holders of the outstanding common shares of Uranerz, as well a majority of the
votes cast by Uranerz shareholders, excluding directors and officers of Uranerz,
at a special meeting to be called by Uranerz to consider the Transaction.
Pursuant to the rules of the Toronto Stock Exchange, the Transaction is also
subject to the approval of at least a majority of the votes cast by Energy Fuels
shareholders at a special meeting to be called by Energy Fuels to consider the
Transaction. In addition, pursuant to the Definitive Agreement, the completion
of the Transaction is conditional upon a number of items, including, without
limitation, the shareholder approvals referred to above, receipt of all
necessary regulatory approvals, and other customary conditions to closing.
Upon closing of the Transaction,
Uranerz will nominate Dennis Higgs, Glenn Catchpole and Paul Saxton as directors
to join the Board of Directors of Energy Fuels. The executive management of the
Company will continue to be led by Energy Fuels’ existing management team, with
key Uranerz executive team members being retained to continue to manage and
operate the Wyoming operations. The executive officers and the Boards of
Directors of both Energy Fuels and Uranerz have agreed to enter into support
agreements to, among other things, vote their shares in favor of the
Transaction. The Boards of Directors of both Energy Fuels and Uranerz have each
resolved to recommend that their respective shareholders vote in favor of the
Transaction.
The Definitive Agreement contains
customary deal support provisions, including a reciprocal break fee of
US$5,000,000 payable if the Transaction is not completed under certain
circumstances. In addition, the Definitive Agreement includes customary and
reciprocal non-solicitation covenants, as well as a reciprocal right to match
any superior proposal that may arise.
Uranerz’ outstanding options and warrants
will be adjusted in accordance with their terms, such that the number of Energy
Fuels shares received upon exercise and the exercise price will reflect the
exchange ratio described above.
The Transaction is expected to be
completed in the second quarter of 2015 or such other date as the parties may
agree. Special meetings of the shareholders of Uranerz and Energy Fuels to
approve the Transaction will each be held at a time yet to be determined, though
expected to be in the second quarter of 2015.
Upon completion of the Transaction,
Uranerz’ common stock will cease trading on the NYSE MKT and the TSX, and the
Company common shares are expected to trade on the TSX and NYSE MKT markets.
The Definitive Agreement is available
on SEDAR at www.sedar.com and on EDGAR at www.sec.gov for Energy Fuels. Copies
of Energy Fuels’ management information circular and Uranerz’ Schedule 14A Proxy
Statement and certain related documents will be sent to shareholders and filed
with the SEC and Canadian securities regulators on SEDAR and EDGAR when
available.
Advisors & Counsel
Cantor Fitzgerald Canada Corp. is
acting as financial adviser to Energy Fuels and its Board of Directors. Borden
Ladner Gervais LLP and Dorsey & Whitney LLP are acting as legal counsel to
Energy Fuels. Roth Capital Partners LLC has provided a fairness opinion to the
Board of Directors of Energy Fuels.
Haywood Securities Inc. is acting as
financial adviser to Uranerz and its Board of Directors. McMillan LLP is acting
as legal adviser to Uranerz. An independent committee (the “Special
Committee”) was formed by the Uranerz Board of Directors to review and make
a recommendation on the Transaction. Gibson, Dunn & Crutcher LLP acted as
legal counsel to the Special Committee. Euro Pacific Canada Inc. has provided a
fairness opinion to the Special Committee.
5.2 - Disclosure for Restructuring
Transactions
Not Applicable.
| 6. |
Reliance on subsection 7.1(2) or (3)
National Instrument 51-102: |
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The report is not being filed on a confidential
basis in reliance on subsection 7.1(2) or (3) of National Instrument
51-102. |
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| 7. |
Omitted Information: |
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No information has been omitted from this
material change report on the basis that it is confidential information.
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| 8. |
Executive Officer: |
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The following executive officer of the
Corporation is knowledgeable about the material change: |
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David Frydenlund, |
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Senior Vice President, General Counsel &
Corporate Secretary |
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(303) 389-4130 |
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| 9. |
Date of Report: |
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January 14, 2015 |
Exhibit 99.2
AGREEMENT AND PLAN OF MERGER
By and Among
ENERGY FUELS INC.
EFR NEVADA CORP.
and
URANERZ ENERGY CORPORATION
Dated as of January 4, 2015
TABLE OF CONTENTS
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TABLE OF CONTENTS
(continued)
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TABLE OF CONTENTS
(continued)
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TABLE OF CONTENTS
(continued)
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TABLE OF CONTENTS
(continued)
-v-
TABLE OF CONTENTS
(continued)
-vi-
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this “Agreement”)
dated January 4, 2015 (the “Agreement Date”), by and among Energy
Fuels Inc., a corporation organized under the laws of the province of Ontario,
Canada (“Parent”), EFR Nevada Corp., a corporation organized under the
laws of the state of Nevada and an indirect wholly owned subsidiary of Parent
(“Merger Sub,” and, together with Parent, the “Parent Parties”)
and Uranerz Energy Corporation, a corporation organized under the laws of the
state of Nevada (“Target”).
WHEREAS, the board of directors of Parent deems it advisable
and in the best interests of Parent and its shareholders, that Merger Sub merge
with and into Target (the “Merger”) upon the terms and subject to the
conditions set forth herein, and Parent’s board of directors has approved this
Agreement and the Merger, subject to approval by the shareholders of Parent;
WHEREAS, the board of directors of Target deems it advisable
and in the best interests of Target and its shareholders that Target enter into
and complete the Merger, and Target’s board of directors has approved this
Agreement and the Merger, subject to approval by the shareholders of Target;
WHEREAS, as an inducement to Parent and Merger Sub to enter
into this Agreement, concurrently with the execution and delivery of this
Agreement, with the approval of Target’s board of directors, Parent has entered
into voting agreements with each of the officers and directors of Target set
forth on Exhibit A-1 attached hereto, pursuant to which such parties
have, among other things, agreed to support the Merger upon the terms and
conditions set forth therein (collectively, the “Target Voting
Agreements”); and
WHEREAS, as an inducement to Target to enter into this
Agreement, concurrently with the execution and delivery of this Agreement, with
the approval of Parent’s board of directors, Target has entered into voting
agreements with each of the officers and directors of Parent set forth on
Exhibit A-2 attached hereto, pursuant to which such parties have, among
other things, agreed to support the Merger upon the terms and conditions set
forth therein (collectively, the “Parent Voting Agreements”, and together
with the Target Voting Agreements, the “Voting Agreements”).
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the parties hereto
agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the
conditions hereof, at the Effective Time, Merger Sub shall merge with and into
Target and the separate existence of Merger Sub shall thereupon cease and Target
shall be the surviving entity in the Merger (sometimes referred to herein as the
“Surviving Entity”) as an indirect wholly owned subsidiary of Parent. The
Merger shall have the effects set forth in Section 92A.250 of Nevada Revised
Statutes (“NRS”) (Chapter 92A of the Nevada Revised Statutes being
referred to herein as the “Merger Act”), including the Surviving Entity’s
succession to and assumption of all rights and obligations of Merger Sub and
Target.
1.2 Effective Time of the Merger. The Merger shall
become effective (the “Effective Time”) upon the later of (i) the date
and time of filing of properly executed Articles of Merger relating to the
Merger with the Secretary of State of Nevada in accordance with the Merger Act
(the “Articles of Merger”) and (ii) at such later time as the parties
shall agree and set forth in such Articles of Merger. The Articles of Merger
shall be filed as soon as practicable on or prior to the Closing Date.
1.3 Governance of Parent. The Parent shall, in
accordance with all applicable corporate, NYSE MKT LLC (“NYSE MKT”) and
TSX laws, rules and regulations, take all actions necessary to cause the
appointment of three (3) existing members of the board of directors of Target to
the board of directors of Parent such that the board of directors of Parent is
constituted as provided in Section 7.13 of this Agreement as of the Effective
Time.
ARTICLE II
THE SURVIVING ENTITY
2.1 Articles of Incorporation and Bylaws. The articles
of incorporation and bylaws of Merger Sub in effect immediately prior to the
Effective Time shall be the articles of incorporation and bylaws of the
Surviving Entity at and after the Effective Time until thereafter amended in
accordance with the terms thereof and Chapter 78 of the NRS (the
“Corporations Act”), provided that the articles of incorporation and
bylaws of the Surviving Entity will contain provisions with respect to
exculpation, indemnification and the advancement of expenses that are at least
as favorable, to the officers and directors of the Target, as those contained in
the articles of incorporation and bylaws of Target, as amended and as in effect
on the date hereof.
2.2 Officers and Directors. At and after the Effective
Time, the officers and directors of Merger Sub shall be the officers and
directors of the Surviving Entity until their respective successors have been
duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving Entity’s articles of
incorporation, bylaws and the Corporations Act.
ARTICLE III
CONVERSION OF SHARES
3.1 Conversion of Capital Stock. At the Effective Time,
by virtue of the Merger and without any action on the part of the holders of any
capital stock described below:
(a) All Target Common Shares that are held in Target’s treasury
or that are then owned by Parent shall be canceled and cease to exist and no
cash, Parent capital stock or other consideration shall be delivered in exchange
therefor.
(b) Subject to Section 3.2(i) and Section 3.4, all issued and
outstanding Target Common Shares (other than Target Common Shares cancelled
pursuant to Section 3.1(a)) shall be automatically converted into and represent
the right to receive Parent Common Shares, on the basis of 0.255 of a Parent
Common Share for each one (1.0) Target Common Share (the “Exchange
Ratio”). All such Target Common Shares, when so converted, shall be retired,
shall cease to be outstanding and shall automatically be cancelled, and the
holder of (i) a certificate in the case of Target Physical Shares, or (ii) a
statement of ownership in the case of Target Book-Entry Shares, that,
immediately prior to the Effective Time, represented such Target Common Shares,
shall cease to have any rights with respect thereto, except the right to
receive, upon the surrender or transfer of such Target Common Shares in
accordance with Section 3.2, the number of Parent Common Shares issuable
therefor in accordance with the Exchange Ratio, without interest, and any
amounts payable pursuant to Section 3.2(d). Notwithstanding the
foregoing, if between the Agreement Date and the Effective Time, the Parent
Common Shares or Target Common Shares are changed into a different number of shares or
a different class because of any stock dividend or distribution, subdivision,
reorganization, reclassification, recapitalization, split, combination or
exchange of shares, the Parent Common Shares to be issued pursuant to this
Section 3.1(b) shall be appropriately adjusted to reflect such event.
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(c) The shares of common stock of Merger Sub issued and
outstanding immediately prior to the Effective Time, shall be converted into
shares of common stock of the Surviving Entity, such that the converted shares
of common stock will represent all of the issued and outstanding shares of
common stock of the Surviving Entity and will be held by an indirect wholly
owned subsidiary of Parent.
(d) The Parent Common Shares issued upon the surrender or
transfer of Target Common Shares in accordance with the terms hereof shall be
deemed to have been issued in full satisfaction of all rights pertaining to such
Target Common Shares formerly represented by any physical certificate or
statement of ownership in book-entry form, and from and after the Effective Time
there shall be no further registration of transfers effected on the stock
transfer books of the Surviving Entity of Target Common Shares which were
outstanding immediately prior to the Effective Time.
3.2 Surrender and Payment.
(a) Exchange Agent and Exchange Fund. Parent shall
authorize one or more transfer agent(s) to act as exchange agent hereunder (the
“Exchange Agent”) with respect to the Merger. At and prior to the
Effective Time, Parent shall deposit, or cause to be deposited, with the
Exchange Agent, as depositary for the Parent Common Shares, or any successor
depositary thereto, a number of Parent Common Shares equal to the aggregate
number of Parent Common Shares to be issued in exchange for the Target Common
Shares pursuant to the Exchange Ratio (the “Exchange Fund”). The Exchange
Agent shall deliver the applicable Parent Common Shares in exchange for the
Target Common Shares pursuant to Section 3.1 out of the Exchange Fund.
Except as contemplated by Section 3.2(d), the Exchange Fund shall not be
used for any other purpose.
(b) Exchange Procedures. As soon as practicable after
the Effective Time, Parent shall cause the Exchange Agent to send to each holder
of record of Target Common Shares a letter of transmittal (which shall specify
that delivery will be effected, and risk of loss and title to Target Physical
Shares shall pass, only upon receipt of the Target Physical Shares by the
Exchange Agent and shall be in a form and have such other provisions as Parent
and Target may reasonably specify), and such other documents as may reasonably
be requested by the Exchange Agent (which may include the receipt of an “agents
message” by the Exchange Agent in connection with Target Book-Entry Shares), for
use in the exchange contemplated by Section 3.1 and instructions for use
in effecting the surrender or transfer of Target Common Shares for cancellation
in accordance with this Agreement (together, the “Exchange
Instructions”). Upon surrender or transfer of Target Common Shares for
cancellation to the Exchange Agent together with such letter of transmittal,
properly completed and duly executed, and such other documents as may be
required pursuant to the Exchange Instructions, the holder of such Target Common
Shares shall be entitled to receive in exchange therefor Parent Common Shares
(which shall be in uncertificated book-entry form unless a physical certificate
is requested or as otherwise agreed to by the Parent and Target) representing,
in the aggregate, the whole number of Parent Common Shares that such holder has
the right to receive pursuant to Section 3.1 and Section 3.2(i),
plus any amount payable pursuant to Section 3.2(d).
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(c) Transferred Target Common Shares. If any portion of
the Parent Common Shares are to be issued to a Person other than the registered
holder of Target Common Shares represented by the stock certificate(s) or
statement of ownership surrendered or transferred in exchange therefor, no such
issuance shall be made unless (i) the stock certificate(s) or statement of
ownership so surrendered or transferred have been properly endorsed and contain
any required Medallion Signature Guarantees and otherwise are in proper form for
transfer, and (ii) the Person requesting such issuance has paid to the Exchange
Agent any transfer or other Taxes required as a result of such issuance to a
Person other than the registered holder or has established to the Exchange
Agent’s satisfaction that such Tax has been paid or is not applicable.
(d) Dividends and Distributions. No dividends or other
distributions declared or made with respect to Parent Common Shares with a
record date after the Effective Time shall be paid to the holder of any
un-surrendered or un-transferred Target Common Shares with respect to the Parent
Common Shares that such holder would be entitled to receive until surrender or
transfer of such Target Common Shares in accordance with Sections 3.1 or
3.2(f). Following surrender or transfer of any Target Common Shares, there
shall be paid to such holder of Parent Common Shares issuable in exchange
therefor, without interest, (i) as soon as practicable after the time of such
surrender, the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid with respect to such Parent Common
Shares, and (ii) at the appropriate payment date, the amount of dividends or
other distributions with a record date after the Effective Time but prior to
such surrender and a payment date subsequent to such surrender payable with
respect to such Parent Common Shares. For purposes of dividends or other
distributions in respect of Parent Common Shares, all Parent Common Shares to be
issued pursuant to the Merger shall be entitled to dividends pursuant to the
immediately preceding sentence as if such Parent Common Shares were issued and
outstanding as of the Effective Time.
(e) Termination of Exchange Fund. Any portion of the
Exchange Fund that remains unclaimed by the holders of Target Common Shares one
year after the Effective Time shall be returned to Parent, upon demand, and any
such holder who has not exchanged such holder’s Target Common Shares in
accordance with this Section 3.2 prior to that time shall thereafter look only
to the Parent to exchange such Target Common Shares pursuant to Section
3.1 or 3.2(i) or to pay amounts to which such holder is entitled
pursuant to Section 3.2(d) . Neither Parent nor the Surviving Entity shall be
liable to any holder of Target Common Shares for any such Parent Common Shares
(or dividends or distributions with respect thereto) from the Exchange Fund
delivered to a public official pursuant to any abandoned property, escheat or
similar Law.
(f) Subject to applicable abandoned or unclaimed property laws,
any certificates formerly representing Target Common Shares that are not
deposited with all other documents as provided in Section 3.2(b) on or
before the fifth anniversary of the Effective Time shall cease to represent any
right or claim of any kind or nature and the right of the former shareholder of
such Target Common Shares to receive certificates representing Parent Common
Shares and the Target Common Shares otherwise issuable to such former Target
shareholder shall be deemed to be surrendered to Parent together with all
dividends or distributions thereon held for such shareholder.
(g) Lost Certificates. If any Target Physical Shares
shall have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the Person claiming such Target Physical Shares to be lost, stolen
or destroyed and, if required by Parent or the Exchange Agent, the posting by
such Person of a bond, in such reasonable amount as Parent or the Exchange Agent
may direct, as indemnity against any claim that may be made against it with
respect to such Target Physical Shares, the Exchange Agent shall pay in exchange
for such lost, stolen or destroyed Target Physical Shares the Parent Common Shares
payable in respect of the Target Physical Shares formerly represented by such
lost, stolen or destroyed stock certificate, without interest.
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(h) Withholding. Each of Parent, the Surviving Entity
and the Exchange Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder of
Target Common Shares such amounts as Parent, the Surviving Entity or the
Exchange Agent determine are required to be deducted and withheld under the Code
or any provision of state, local, or foreign Tax Law with respect to the making
of such payment, such withholding of Parent Common Shares issued to any holder
of Target Common Shares shall be an amount determined by Parent to be reasonably
necessary to satisfy the Parent’s withholding obligation. To the extent that
amounts are so withheld by Parent, the Surviving Entity or the Exchange Agent,
such withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the holder of Target Common Shares in respect of which such
deduction and withholding was made by Parent, the Surviving Entity or the
Exchange Agent, as the case may be. Parent and Target shall cooperate with and
assist each other with efforts to reduce or eliminate such withholding Taxes.
Parent will sell a sufficient number of Parent Common Shares to satisfy the
withholding obligation and the balance of any Parent Common Shares and any cash
proceeds remaining after satisfaction of the withholding obligation shall be
remitted to the holder.
(i) No Fractional Shares. No certificates or scrip or
fractional Parent Common Shares or book-entry credit representing such
fractional share interests shall be issued upon the surrender of Target Common
Shares. Each holder of Target Common Shares exchanged pursuant to this
Article III (after taking into account all Target Common Shares delivered
or transferred by such holder) who would otherwise have been entitled to receive
a number of Parent Common Shares which is not a whole number shall receive the
number of Parent Common Shares rounded to the nearest whole number (and, if the
fraction is 0.5, the number of Parent Common Shares shall be rounded up to the
next whole number). The parties acknowledge that rounding of fractional Parent
Common Shares was not separately bargained for consideration but merely
represents a mechanical rounding off for purposes of simplifying the corporate
and accounting problems that would otherwise be caused by the issuance of
fractional Parent Common Shares.
3.3 Stock Options and Warrants.
(a) At the Effective Time, Parent and Target shall take all
such action as may be necessary to cause each outstanding and unexpired and
unexercised option to purchase Target Common Shares (a “Target Stock
Option”) granted under Target’s 2005 Nonqualified Stock Option Plan, as
amended (collectively, the “Target Stock Option Plan”) to be
automatically converted at the Effective Time into options (the “Substituted
Options”) to purchase a number of Parent Common Shares (rounded down to the
nearest whole number of Parent Common Shares) equal to the product of (x) the
aggregate number of Target Common Shares purchasable pursuant to such Target
Stock Option immediately prior to the Effective Time multiplied by (y) the
Exchange Ratio at a price per Parent Common Share equal to the exercise price
per Target Common Share specified in the Target Stock Option divided by the
Exchange Ratio (such price rounded up to the nearest whole cent). Such
Substituted Option shall otherwise be subject to the same terms and conditions,
including vesting and expiry date, as the Target Stock Option in respect of
which it is issued. Parent will assume all obligations under the Target Stock
Option Plan as at the Effective Time and from and after the Effective Time, and
the Parent will comply with all of the terms and conditions of the Substituted
Options, including the obligation to issue the Parent Common Shares contemplated
thereby upon the exercise thereof. For purposes of vesting conditions, the date
of grant of the Substituted Option shall be deemed to be the date on which the corresponding Target Stock Option was granted. Prior
to the Effective Time, Target shall make all necessary amendments under the
Target Stock Option Plan to provide that no further awards shall be made
thereunder following the Closing. At and after the Effective Time, (i) all
references in the Target Stock Option Plan and related stock option agreements
to Target shall be deemed to refer to Parent and (ii) Parent shall assume all of
Target’s obligations with respect to the Target Stock Options as so amended.
Substitution of the Target Stock Options for the Substituted Options will occur
in compliance with Code Section 409A so that the substitution avoids being
treated as the grant of new stock options.
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(b) Target Stock Options held by independent directors of
Target (as defined by applicable Law), who are not officers or directors of
Parent on Closing, shall expire on the earlier of (i) the current expiry date of
such Target Stock Options (exclusive of the operation of the early termination
provisions of such Target Stock Options) or (ii) six months after the Closing
Date.
(c) In respect of each Substituted Option, and the Parent
Common Shares underlying such Substituted Option, Parent shall, as soon as
practicable after the Effective Time and in no event later than 30 days from the
Closing Date, file a Form S-8 or other appropriate registration statement and
use reasonable efforts to keep such registration statement current for as long
as any Substituted Options remain outstanding.
(d) At the Effective Time, and in accordance with the terms of
each warrant to purchase Target Common Shares issued by Target that are issued
and outstanding immediately prior to the Effective Time (collectively, the
“Target Warrants”), Target Warrants shall become exercisable into Parent
stock in accordance with their terms. Parent acknowledges and shall assume the
obligations under the Target Warrants and under each warrant indenture governing
the Target Warrants (the “Target Warrant Indentures”) to issue Parent
Common Shares upon exercise of such Target Warrants and, if required by the
Target Warrant Indentures, shall issue a warrant certificate to each holder of
Target Warrants confirming such assumption. Consistent with the terms of the
Target Warrants and Target Warrant Indentures, any such warrant certificate
shall provide that such warrant shall be exercisable for a number of Parent
Common Shares equal to the product of (x) the aggregate number of Target Common
Shares issuable in respect of such Target Warrants immediately prior to the
Effective Time multiplied by (y) the Exchange Ratio (the “Assumed
Warrants”) and that the exercise price of the Assumed Warrants will equal
(i) the exercise price of the Target Warrants in effect immediately prior to the
Effective Time, divided by (ii) the Exchange Ratio. Each Assumed Warrant shall,
consistent with the terms of the Target Warrants and Target Warrant Indentures,
contain appropriate provision such that the provisions of each Target Warrant
(including the exercise period and the exercise price and provision for
adjustment of the exercise price) shall thereafter be maintained in each such
Assumed Warrant as nearly equivalent as may be practicable in relation to such
Target Warrant. From and after the Effective Time, Parent shall comply with all
of the terms and conditions set forth in each such Assumed Warrant, including
the obligation to issue the Parent Common Shares contemplated thereby upon
exercise thereof.
3.4 Dissenting Shareholders.
(a) Notwithstanding anything in this Agreement to the contrary,
in the event that the applicable requirements of Section 92A.120 of the Merger
Act have been satisfied, Target Common Shares which were outstanding on the date
for the determination of shareholders entitled to vote on the Merger and which
were voted against the Merger and the holders of which have demanded that the
Target purchase such shares at their fair value in accordance with Sections
92A.300 through 92A.500 of the Merger Act and have not otherwise failed to
perfect or shall not have effectively withdrawn or lost their rights to
require such shares to be purchased for cash under the Merger Act (collectively,
“Dissenting Shares”), shall not be converted into or represent the right
to receive any Parent Common Shares pursuant to Section 3.1(b), but, instead,
the holders thereof shall be entitled to have their shares purchased for cash at
the fair value of such Dissenting Shares as agreed upon or determined in
accordance with the provisions of Sections 92A.460 through 92A.500 of the Merger
Act.
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(b) If any shareholder who holds Dissenting Shares as of the
Effective Time effectively withdraws or loses (through passage of time, failure
to demand or perfect, or otherwise) the right to demand and perfect dissenters’
rights under the Merger Act, then, as of the later of the Effective Time and the
occurrence of such event, such holder’s shares that were Dissenting Shares shall
automatically be converted into and represent only the right to receive the
Parent Common Shares pursuant to and subject to Section 3.1(b) without
interest thereon upon surrender of the Certificates representing such holder’s
Target Common Shares.
(c) The Target shall give Parent (i) prompt written notice of
any written demands for purchase of any Target Common Shares pursuant to the
exercise of dissenters’ rights, withdrawals of such demands, and any other
instruments or notices served pursuant to the Merger Act on the Target and (ii)
the opportunity to participate in all negotiations and proceedings with respect
to demands for purchase of any Target Common Shares pursuant to the exercise of
dissenters’ rights under the Merger Act. The Target shall not, except with the
prior written consent of Parent, voluntarily make or agree to make any payment
with respect to any demands for purchase of any shares of Target Common Shares
pursuant to the exercise of dissenters’ rights under the Merger Act, or settle
or offer to settle any such demands.
3.5 Closing. The closing (the “Closing”) of the
transactions contemplated by this Agreement (the “Transactions”) will
take place at 10:00 a.m. Eastern Standard Time on the second Business Day after
the satisfaction or (to the extent permitted by applicable Law) waiver of the
conditions set forth in Article VIII, other than any such conditions
which by their nature cannot be satisfied until the Closing Date, or such other
time agreed by the parties, at the offices of Borden Ladner Gervais LLP in
Toronto, unless another time, date or place is agreed to in writing by the
parties hereto (the date upon which the Closing occurs being referred to herein
as the “Closing Date”).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TARGET
Except as set forth in the disclosure letter delivered by
Target to Parent contemporaneously with the execution hereof (the “Target
Disclosure Letter”), Target represents and warrants to the Parent Parties,
unless another date is specifically referenced in a particular representation or
warranty, as of the Agreement Date and as of the Closing Date, that the
representations and warranties contained in this Article IV are true and correct
on and as of such dates. For purposes of this Agreement, a document shall be
deemed to have been “made available” by the Target to Parent if it is publicly
available through the Electronic Data Gathering, Analysis, and Retrieval system
(“EDGAR”) or the System for Electronic Document Analysis and Retrieval
(“SEDAR”).
4.1 Organization and Qualification.
(a) Target is a corporation validly existing and in good
standing under the laws of the State of Nevada, and has all requisite corporate
or other power and authority to own, lease, use and operate its properties and
to carry on its business as it is now being conducted.
7
(b) Target is duly qualified or licensed to do business as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification or licensing is required, except for such failures to be so
qualified or licensed as would not, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect with respect to Target or
the Surviving Entity. Section 4.1(b) of the Target Disclosure Letter sets forth
a true and correct list of all of the jurisdictions in which Target is qualified
or licensed to do business as a foreign corporation.
(c) Target has no Subsidiaries. Target does not own any equity
interest in any Person other than as set forth in Section 4.1(c) of the Target
Disclosure Letter.
(d) Target has previously delivered to Parent a true and
complete copy of its articles of incorporation and bylaws, in each case as
amended through the Agreement Date. Target is not in violation of its articles
of incorporation, bylaws or similar governing documents.
(e) Pursuant to express provisions in the Target’s articles of
incorporation, the provisions of Nevada’s Combinations with Interested
Stockholders Act (NRS 78.411 to 78.444) and Nevada’s Acquisition of Controlling
Interest Act (NRS 78.378 to 78.3793) do not apply to the Target and the
Transactions contemplated in this Agreement.
4.2 Capitalization.
(a) The authorized capital stock of Target consists solely of
750,000,000 Target Common Shares and 10,000,000 shares of preferred stock (the
“Target Preferred Shares”). As of the Agreement Date, (i) 95,895,306
Target Common Shares are issued and outstanding, (ii) 7,311,680 Target Common
Shares are reserved for issuance upon the exercise of outstanding Target Stock
Options under the Target Stock Option Plan, (iii) 10,550,000 Target Common
Shares are reserved for issuance upon the exercise of outstanding Target
Warrants under the Warrant Indentures, (iv) no Target Preferred Shares have been
issued, (v) no Target Common Shares are held by Target in treasury, and (vi) a
number of rights equivalent to the number of Target Common Shares issued and
outstanding have been issued and are outstanding pursuant to a Shareholder
Rights Plan adopted by Target effective as of August 25, 2010 and reconfirmed on
July 10, 2013 (the “Target Rights Plan”). All of the outstanding Target
Common Shares are duly authorized, validly issued, fully paid and
non-assessable, and were not issued in violation of any purchase option, call
option, right of first refusal, preemptive right or other similar right. Other
than as set forth in Section 4.2(a) of the Target Disclosure Letter, Target has
not agreed to register any securities under the Securities Act or any state
securities laws.
(b) Except as set forth in Section 4.2(a) of this Agreement or
in Section 4.2(b) of the Target Disclosure Letter, there are no authorized or
outstanding (i) options, warrants, preemptive rights, subscriptions, calls or
other rights, convertible securities, agreements, stock appreciation rights,
phantom equity or other claims or commitments of any character (including
“rights plans” or “poison pills”) that may obligate Target to issue, transfer or
sell any shares of capital stock or other equity interest in Target , or
securities convertible into or exchangeable for such shares or equity interests,
(ii) contractual obligations of Target to repurchase, redeem or otherwise
acquire any capital stock or other equity interest of Target or any securities
or agreements listed in clause (i) of this sentence, or (iii) voting trusts or
similar agreements to which Target is a party with respect to the voting of the
capital stock or other equity interests of Target.
(c) There are no bonds, debentures, notes or other indebtedness
issued or outstanding having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) with the shareholders or other equity holders of Target,
whether together or as a separate class, on any matters on which such holders
may vote.
8
(d) Section 4.2(d) of the Target Disclosure Letter sets forth
the following information with respect to each Target Stock Option outstanding
as of the Agreement Date: (i) the name of the holder, (ii) the number of Target
Common Shares issuable upon exercise thereof, (iii) the exercise price, (iv) the
issue date, (v) the termination date, (vi) the stock option plan under which
such option was issued and (vii) whether such option contains any put,
redemption, cashless exercise or similar feature.
(e) At the Effective Time, after giving effect to the
provisions of Section 3.3, there will not be any outstanding
subscriptions, options, warrants, calls, preemptive rights, subscriptions or
other rights, convertible or exchangeable securities, agreements, claims or
commitments of any character by which Target will be bound providing for the
purchase or issuance of any shares of capital stock or other equity interest of
Target (or, following the Closing, the Surviving Entity) or securities
convertible into or exchangeable for such shares or any other such securities or
agreements.
(f) Except for the Target Stock Options and the Target Stock
Option Plan there are no contracts to which Target is a party obligating Target
to accelerate vesting of any equity compensation awards as a result of the
Transactions contemplated by this Agreement.
4.3 Authority; Validity of Agreement. Target has full
corporate power and authority to execute and deliver this Agreement and any
Ancillary Agreements to which it is or will be a party and, subject to obtaining
the Target Shareholder Approvals, to consummate the Transactions. The execution,
delivery and performance of this Agreement and the Ancillary Agreements to which
Target is or will be a party and the consummation of the Transactions have been
duly and validly authorized by Target’s board of directors, and no other
corporate proceedings on the part of Target are necessary to authorize this
Agreement and the Ancillary Agreements to which Target is or will be a party or
to consummate the Transactions, other than the Target Shareholder Approvals and
the filing of the Articles of Merger with the Secretary of State of the State of
Nevada. This Agreement has been, and the Ancillary Agreements to which Target is
or will be a party are, or upon execution will be, duly and validly executed and
delivered by Target and, assuming the due authorization, execution and delivery
hereof and thereof by the other parties hereto and thereto, constitutes, or upon
execution will constitute, valid and binding obligations of Target enforceable
against Target in accordance with their respective terms, except as such
enforceability may be subject to the effects of bankruptcy, insolvency,
reorganization, moratorium and other Laws relating to or affecting the rights of
creditors and of general principles of equity (the “Enforceability
Exception”).
4.4 No Violation; Consents and Approvals.
(a) The execution and delivery of this Agreement and any
Ancillary Agreement to which Target is or will be a party, the consummation of
the Transactions and the performance by Target of its obligations hereunder and
thereunder will not (i) subject to receipt of the Target Shareholder Approvals,
conflict with any provision of the articles of incorporation or bylaws of
Target, (ii) subject to completion of the deliveries required under the Wyoming
Bond Financing Agreement identified in Section 4.4 (b) below, result in any
violation of, or the breach of, or constitute a default (with notice or lapse of
time or both) under, or give rise to any right of termination, cancellation or
acceleration or guaranteed payments or a loss of any benefit under, or the
acceleration of performance, vesting or an increase in compensation or benefit
required by, or the creation of any Lien upon any equity interests in or assets
of Target under, any of the terms, conditions or provisions of any note, lease, mortgage, license,
plan, agreement or other instrument or obligation to which Target is a party or
by which Target or any of its properties or assets may be bound or (iii) violate
the provisions of any Law applicable to Target, except, in the case of clauses
(ii) and (iii), for such violations, breaches, defaults, or rights of
termination, cancellation or acceleration that, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect with
respect to Target or the Surviving Entity, materially impair the ability of
Target to perform its obligations under this Agreement or any Ancillary
Agreement or be reasonably likely to prevent or materially delay the
consummation of any of the Transactions.
9
(b) No material filing or registration with, declaration or
notification to, or order, authorization, consent or approval of, any
Governmental Authority or any other Person is required in connection with the
execution and delivery of this Agreement or any Ancillary Agreement to which
Target is or will be a party and the consummation of the Transactions by Target
and the performance by Target of its obligations hereunder or thereunder, except
for (i) the filing with the Securities and Exchange Commission (the
“SEC”) of the Form F-4, the Proxy Statement/Prospectus in definitive form
and the filing and declaration of effectiveness of the Form F-4, (ii) the filing
with the SEC of such reports under the Exchange Act as may be required in
connection with this Agreement and the other transactions contemplated by this
Agreement, (iii) filings required under the rules and policies of the NYSE MKT
and TSX, (iv) the delivery of an assumption agreement and legal opinion under
the Wyoming Bond Financing Agreement, in form and substance as required under
the Wyoming Bond Financing Agreement, (v) the receipt of the Target Shareholder
Approvals, (vi) such filings, authorizations or approvals as may be required
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and
the rules and regulations thereunder (the “HSR Act”), (vii) the filing of
the Articles of Merger in the office of the Nevada Secretary of State, (viii)
any consents, authorizations, approvals, filings or exemptions in connection
with applicable stock exchange rules, (ix) approval of the Wyoming Department of
Environmental Quality to application for Permit to Mine Transfer, (x) the
approval of the United States Nuclear Regulatory Commission to the change of
control of any source material or byproduct material licenses held by Target;
and (xi) such consents, approvals, orders, authorizations, notifications,
registrations, declarations and filings (A) as are customarily made or obtained
in connection with the transfer of interests in or change of control of
ownership of mining properties and (B) the failure of which to be obtained or
made, individually or in the aggregate, would not be reasonably likely to have a
Material Adverse Effect with respect to Target or the Surviving Entity,
materially impair the ability of Target to perform its obligations under this
Agreement or any Ancillary Agreement or be reasonably likely to prevent or
materially delay the consummation of any of the Transactions.
4.5 Target Reports
(a) Copies of Target’s registration statements, reports,
schedules, proxies or information statements and other documents (including
exhibits and amendments thereto) filed with or furnished to the SEC since
January 1, 2012 (collectively, the “Target SEC Reports”) are available
online with the SEC and through the EDGAR system. Target has timely filed with
or furnished to the SEC each of the Target SEC Reports required to be filed or
submitted by it with the SEC or mailed to its shareholders pursuant to the
Securities Act, the Exchange Act or rules promulgated thereunder. As of their
respective dates (or, if any Target SEC Reports were amended, as of the date
such amendment was filed with the SEC), each Target SEC Report, including any
financial statements or schedules included therein and as amended, if amended,
(i) complied in all material respects with all applicable requirements of the
Securities Act and the Exchange Act, as the case may be, and the applicable
rules promulgated thereunder and (ii) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. No event since the date of the last Target SEC Report has occurred
that would require Target to file a Current Report on Form 8-K other than the
execution of this Agreement.
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(b) Copies of Target’s prospectuses, financial statements,
management discussion & analysis, annual reports, management proxy circulars
and other public disclosure documents (including exhibits and amendments
thereto, and documents incorporated by reference therein) filed with or
furnished to the securities regulatory authorities in the Provinces of Canada in
which Target is a “reporting issuer” or equivalent since January 1, 2012
(collectively, the “Target SEDAR Reports”) are available online
through SEDAR. Target has timely filed each of the Target SEDAR Reports required
to be filed or submitted by it or mailed to its shareholders pursuant to the
applicable securities legislation (including any rules and regulation
promulgated thereunder) of each of the Provinces of Canada in which Target is a
“reporting issuer” or equivalent. As of their respective dates (or, if any
Target SEDAR Reports were amended, as of the date such amendment was filed on
SEDAR), each Target SEDAR Report, including any financial statements or
schedules included therein, (i) complied in all material respects with all
applicable requirements of such applicable securities legislation, and (ii) did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) The Chief Executive Officer and Chief Financial Officer of
Target have made all certifications (without qualification or exception to the
matters certified) required by, and would be able to make such certifications
(without qualification or exception to the matters certified) if required to do
so as of such dates pursuant to the Sarbanes-Oxley Act of 2002 (the
“Sarbanes-Oxley Act”) and any related rules and regulations promulgated
by the SEC, and the statements contained in any such certifications are complete
and correct.
(d) Except as set forth in Section 4.5(d) of the Target
Disclosure Letter, neither Target nor any of its officers has received any
notice from any Governmental Authority questioning or challenging the accuracy,
completeness, form or manner of filing or submission of the certifications in
Section 4.5(c) .
(e) Except as set forth in the Target SEC Reports, Target is
otherwise in compliance in all material respects with all applicable provisions
of the Sarbanes-Oxley Act and the applicable rules of NYSE MKT and the TSX.
(f) To the Knowledge of the Target, each director and executive
officer of the Target has filed with the SEC on a timely basis all statements
required by Section 16(a) of the Exchange Act and the rules and regulations
thereunder.
4.6 Financial Statements. Each of the audited
consolidated financial statements and unaudited consolidated interim financial
statements of Target (including any related notes and schedules) included or
incorporated by reference in the Target SEC Reports, as such financial
statements may have been amended or restated, as applicable, has been or will be
prepared from, and is or will be in accordance with, the books and records of
Target, complies or will comply in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto as in effect at the time of filing, has been or will be
prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis (“GAAP”) (except as may be
indicated in the notes thereto and subject, in the case of interim financial
statements, to normal and recurring year-end adjustments that, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect with
respect to Target) and fairly presents or will fairly present the consolidated
financial position of Target as of the date thereof and the consolidated results
of operations, cash flows and changes in financial position of Target for the
periods presented therein.
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4.7 Absence of Undisclosed Liabilities. Except as and to
the extent (i) set forth on the consolidated balance sheet of Target as at
December 31, 2013, including the notes thereto (the “2013 Target
Balance Sheet”), (ii) set forth on the unaudited balance sheet of Target as
at September 30, 2014, including the notes thereto (the “September 30, 2014
Target Balance Sheet”) (each of the 2013 Target Balance Sheet and the
September 30, 2014 Target Balance Sheet as filed on EDGAR), or (iii)
specifically and individually described in Section 4.7 of the Target Disclosure
Letter, Target does not have any Liability required to be reflected or reserved
against in a consolidated balance sheet of Target prepared in accordance with
GAAP as applied in preparing the 2013 Target Balance Sheet or the September 2014
Target Balance Sheet, as applicable, except for Liabilities that would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect with respect to Target.
4.8 Off-Balance Sheet Arrangements. Target is not a
party to, and does not have any commitment to become a party to, any "off
balance sheet arrangements", as defined in Item 303(a) of Regulation S-K under
the Exchange Act.
4.9 Absence of Certain Changes. Except as (i) disclosed
in the Target SEC Reports filed and publicly available prior to the Agreement
Date, including the September 30, 2014 Target Balance Sheet, (ii) contemplated
by this Agreement, or (iii) set forth in Section 4.9 of the Target Disclosure
Letter, as of the date of this Agreement, except for Sections 4.9(a), 4.9(b) and
4.9(o) which shall be true as of the date of this Agreement and as of the
Closing Date, Target has conducted its business only in the ordinary
course of business consistent with past practice since December 31, 2013 and
since December 31, 2013:
(a) there has not been any change or development that,
individually or in the aggregate, has had or would be reasonably likely to have
had a Material Adverse Effect with respect to Target;
(b) there has not been any material damage, destruction or
other casualty loss with respect to any material asset or property owned, leased
or otherwise used by Target, whether or not covered by insurance;
(c) there has not been any amendment or change in the Target’s
organizational documents;
(d) there has not been any incurrence, creation or assumption
of (i) any Lien on any of its assets or properties (other than Permitted Liens)
or (ii) any Liability as a guarantor or surety with respect to the obligations
of any Person other than in the ordinary course of business consistent with past
practice;
(e) there has not been any increase or agreement to increase
the wages, salaries or compensation payable to any officer, employee or director
from the amount thereof in effect as of September 30, 2014, other than increases
in wages, salaries and other cash compensation and new employment agreements in
the ordinary course of business consistent with past practice;
(f) there has not been a grant of, or change in, any severance
or termination pay, other than with respect to new employment agreements entered
into in the ordinary course of business consistent with past practice;
12
(g) the Target has not entered into or made any loans to any of
its officers, directors or employees or made any change in its borrowing or
lending arrangements for or on behalf of any of such Persons;
(h) the Target has not adopted or amended, or accelerated the
payment or vesting of benefits under, any Target Benefit Plan;
(i) the Target has not declared, set aside or paid any dividend
or other distribution (whether in cash, stock or property) with respect to any
of Target’s capital stock;
(j) the Target has not effected or authorized any split,
combination or reclassification of any of Target’s capital stock or any issuance
thereof or issued any other securities in respect of, in lieu of or in
substitution for shares of Target’s capital stock, except for issuances of
Target Common Shares upon the exercise of Target Stock Options or Target
Warrants, in each case, in accordance with their terms at the time of exercise,
(k) there has not been any material change, and the Target does
not have Knowledge of any reason that would require any material change, in any
accounting methods (or underlying assumptions), principles or practices of
Target or any revaluation of any of its assets;
(l) the Target has not made or changed any material Tax
election, or settled or compromised any material income Tax liability, or
materially amended any Tax Return;
(m) the Target has not acquired any material assets, or sold,
leased, exchanged, transferred, licensed, farmed-out or otherwise disposed of
any material assets, in each case other than in the ordinary course of business
consistent with past practice;
(n) the Target has not discharged or satisfied any Indebtedness
or paid any obligation or Liability, other than current Liabilities incurred and
paid in the ordinary course of business and consistent with past practice;
(o) there has not been the commencement of any action, suit,
arbitration, mediation, proceeding, claim or investigation, or receipt notice
of, or a threat of any action, suit, arbitration, mediation, proceeding, claim
or investigation against the Target relating to any of its business, properties
or assets; and
(p) the Target has not made any agreement or commitment
(contingent or otherwise) to do any of the foregoing.
4.10 Taxes. Except as set forth in Section 4.10 of the
Target Disclosure Letter:
(a) Target has timely filed or will file all Tax Returns
required by applicable Law to be filed by it prior to or as of the Closing Date.
As of the Closing Date, the foregoing Tax Returns were true and correct and
prepared in compliance with applicable Law in all material respects. The unpaid
Taxes of Target did not, as of the most recent fiscal month end, exceed the
reserve for Tax Liability (rather than any reserve for deferred Taxes
established to reflect timing differences between book and Tax income) set forth
on the face of the 2013 Target Balance Sheet (rather than in any notes thereto)
and do not exceed that reserve as adjusted for the passage of time through the
Closing Date in accordance with the past custom and practice of Target in filing
its Tax Returns, and such reserve fully accounts for all Tax accrued or accruing
for all periods up to the date of such 2013 Target Balance Sheet. Target is not
currently the beneficiary of any extension of time within which to file any Tax Return. Target
has made available or will make available prior to the Closing Date true and
complete copies of its Tax Returns to Parent for all periods beginning on or
after January 1, 2010.
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(b) Target has paid all Taxes due with respect to any period
ending prior to or as of the Closing Date except where failure to pay any such
Taxes will not have a Material Adverse Effect with respect to Target. Target has
withheld and paid all Taxes required to have been withheld and paid in
connection with any amounts paid or owing to any employee, director, officer,
agent, independent contractor, creditor, shareholder, or other third party,
except where failure to pay or withhold any such Taxes will not have a Material
Adverse Effect with respect to Target.
(c) No Audit by a Tax Authority is pending or, to the Knowledge
of Target, threatened, with respect to any Tax Returns filed by, or Taxes due
from, Target. No issue has been raised by any Tax Authority in any Audit of
Target that, if raised with respect to any other period not so audited,
reasonably could be expected to result in a material proposed deficiency for any
period not so audited. No material deficiency or adjustment for any Taxes has
been proposed, asserted, assessed or, to the Knowledge of Target, threatened,
against Target. No claim has ever been made by a Tax Authority in a jurisdiction
where Target does not file Tax Returns that Target is or may be subject to
taxation by that jurisdiction. There are no Liens for Taxes upon the assets of
Target, except Liens imposed by operation of law for current Taxes not yet
delinquent.
(d) Target has not given any waiver of statutes of limitations
relating to Taxes or executed a power of attorney with respect to Tax matters
that, in either case, will be outstanding as of the Closing Date.
(e) There are no Tax sharing, Tax indemnity or similar
agreements to which Target is a party or bound by or pursuant to which Target
has any obligation or liability for Taxes.
(f) Target has never been a member of an affiliated group of
corporations within the meaning of Section 1504 of the Code or a group of
corporations filing combined or unitary returns.
(g) Target has not agreed to make nor is it required to make
any adjustment under Section 481(a) of the Code by reason of change in
accounting method or otherwise.
(h) Target has no liability for Taxes of any Person (other than
Target) under Treasury Regulation Section 1.1502 -6 (or any similar provision of
state, local or foreign Law), as a transferee or successor, by contract or
otherwise.
(i) Target has not distributed stock of another Person, or has
had its stock distributed by another Person in a transaction that was purported
or intended to be governed in whole or in part by Code Sections 355 or 361
within the two-year period preceding the date of this Agreement.
(j) Target will not be required to include any item of income
in, or exclude any item of deduction from, taxable income for any taxable period
(or portion thereof) ending after the Closing Date as a result of any (i) change
in method of accounting for a taxable period ending on or prior to the Closing
Date, (ii) “closing agreement” as described in Code Section 7121 (or any
corresponding or similar provision of state, local, or foreign income Tax law)
executed on or prior to the Closing Date or (iii) an installment sale or open
transaction disposition made on or prior to the Closing Date.
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(k) Target has not participated, within the meaning of Treasury
Regulation Section 1.6011 -4(c) (or any predecessor of such Treasury
Regulation), in (i) any “listed transaction” within the meaning of Code Section
6011 and the Treasury Regulation thereunder (or any corresponding or similar
provision of state, local, or foreign income Tax Law) or (ii) any transaction
required to be registered with the Internal Revenue Service under Code Section
6111 as in effect on or prior to December 31, 2013 and the Treasury Regulation
thereunder (or any corresponding or similar provision of state, local, or
foreign income Tax Law).
(l) Target is not a party to any agreement, contract,
arrangement or plan that has resulted or could result, separately or in the
aggregate, in the payment of (i) any “excess parachute payment” within the
meaning of Code §280G (or any corresponding provision of state, local or foreign
Tax Law) and (ii) any amount that will not be fully deductible as a result of
Code §162(m) (or any corresponding provision of state, local or foreign Tax
Law).
4.11 Litigation. Except as specifically disclosed in
Section 4.11 of the Target Disclosure Letter, there is no suit, claim, action,
proceeding or investigation pending or, to Target’s Knowledge, threatened
against or directly affecting Target or any of the directors or officers of
Target in their capacity as such, nor is there any reasonable basis therefor,
that, individually or in the aggregate, would be reasonably likely to have a
Material Adverse Effect with respect to Target if determined adversely to Target
or any such director or officer. Neither Target nor any officer, director or
employee of Target, has been permanently or temporarily enjoined by any order,
judgment or decree of any court or any other Governmental Authority that names
such Person from engaging in or continuing any conduct or practice in connection
with the business, assets or properties of Target nor, to the Knowledge of
Target, is Target or any officer, director or employee of Target under
investigation by any Governmental Authority. There has not been, and to the
Target’s Knowledge, there is not pending or contemplated, any investigation by
the SEC involving the Target or any current or former director or officer of the
Target.
4.12 Employee Benefit Plans; ERISA.
(a) Section 4.12(a) of the Target Disclosure Letter contains a
true and complete list of each plan, fund, contract, program, agreement and
arrangement (whether written or not) for the benefit of present or former
employees or directors, including those intended to provide pension, profit
sharing, retirement, supplemental retirement, deferred compensation, equity
incentive, or bonus or other incentive benefits (whether or not tax qualified
and whether or not defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”)); disability, medical, dental,
or other health insurance benefits, life insurance or other death benefit
benefits (whether or not defined in Section 3(1) of ERISA); salary continuation,
unemployment, supplemental unemployment, severance, termination pay,
change-in-control, vacation or holiday benefits (whether or not defined in
Section 3(3) of ERISA) (i) to which Target is a party or by which it is bound,
or (ii) with respect to which Target has made any payments or contributions or
may otherwise have any liability, whether direct or indirect, (including any
such plan or other arrangement formerly maintained by Target), (iii) that Target
has committed to implement, establish, adopt or contribute to in the future,
(iv) for which Target is or may be financially liable as a result of Target’s
affiliation with any company or any company’s shareholders which together with
Target would be deemed a “single employer” within the meaning of Section 414(b),
(c) or (m) of the Code or Section 4001(b)(1) of ERISA (a “Target ERISA
Affiliate”) (whether or not such affiliation exists at the date of this
Agreement and notwithstanding that the plan is maintained by the Target for the
benefit of its employees or former employees), (v) for or with respect to which Target is or may become liable under any
common law successor doctrine, express successor liability provision of Law,
labor or employment Law or agreement with a predecessor employer (“Target
Benefit Plan”). Target Benefit Plan does not include any arrangement that
has been terminated and completely wound up prior to the date of this Agreement
and for which Target has no present or potential Liability.
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(b) With respect to each Target Benefit Plan, (i) such plan has
been administered in compliance with its terms and applicable Law in all
material respects, (ii) each Target Benefit Plan that is intended to be
“qualified” within the meaning of Section 401(a) of the Code has received a
favorable determination letter from the Internal Revenue Service or is
maintained under a prototype or volume submitter plan and with respect to which
the Target and the Target ERISA Affiliates are entitled to rely upon a favorable
opinion or advisory letter issued by the Internal Revenue Service, (iii) to the
Knowledge of the Target, there is no circumstance that will result in the
revocation of any favorable determination letter, opinion letter or advisory
letter issued by the Internal Revenue Service, (iv) neither Target nor any
Target ERISA Affiliate has engaged in, and Target and each Target ERISA
Affiliate do not have any Knowledge of any Person that has engaged in, any
transaction or acted or failed to act in any manner that would subject Target or
any Target ERISA Affiliate to any liability for a breach of fiduciary duty under
ERISA, (v) no disputes are pending or, to the Knowledge of Target or any Target
ERISA Affiliate, threatened, other than ordinary claims for benefits, nor is
there any basis for such a proceeding, (vi) neither Target nor any Target ERISA
Affiliate has engaged in, and neither Target nor any Target ERISA Affiliate has
any Knowledge of any Person that has engaged in, any transaction prohibited by
Section 406 of ERISA or Section 4975 of the Code, except for those for which an
exemption applies, (vii) all contributions due have been made on a timely basis,
(viii) all required reports, notices and descriptions related to the Target
Benefit Plan (including, but not limited to, those required by Target Benefit
Plan provisions, ERISA and the Code) have been distributed to participants or
filed with the appropriate Governmental Authority, (ix) all contributions made
or that will be made under any Target Benefit Plan meet the requirements for
deductibility under the Code, (x) Target is not liable (either directly or as a
result of indemnification) for any excise Taxes, penalties, damages or equitable
relief as a result of any violation under ERISA or any other applicable Law,
(xi) no leased employees (as defined in Section 414(n) of the Code) or
independent contractors are eligible for, or participate in, any Target Benefit
Plan and (xii) no audit or examination by a Governmental Authority is currently
pending (nor has notice been received regarding a potential audit or
examination) and there are no pending submissions to a Governmental Authority.
(c) With respect to all Target Benefit Plans, to the extent
that the following documents exist, Target has furnished Parent with true and
complete copies of: (i) the most recent determination letter, if any, received
by the Target or any Target ERISA Affiliate from the IRS, (ii) all pending
applications for rulings, determinations, opinions, no action letters and the
like filed with any governmental agency (including the Department of Labor and
the Internal Revenue Service), (iii) the Annual Report/Return (Form Series 5500)
with financial statements, if any, and attachments for the most recent plan
year, (iv) Target Benefit Plan documents, summary plan descriptions, trust
agreements, insurance contracts, individual agreements, service agreements and
all related contracts and documents (including any material employee summaries
and material employee communications), and (v) all Internal Revenue Service or
Department of Labor audit closing letters, audit finding letters, revenue agent
findings and similar documents.
(d) Any Target Benefit Plan, individual employment, severance
or other compensatory agreement or arrangement with respect to which the Target
or any Target ERISA Affiliate has any current or future obligation that is a
“nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code), complies in
form and operation with the requirements under Code Section 409A and the
Treasury Regulations issued thereunder (without regard to the effective date of
such regulations) so as not to result in the imposition of additional Tax or
interest to a service provider.
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(e) No Target Benefit Plan is a multiple employer plan (as
defined in Section 413(c) of the Code), a multiemployer plan (as defined in
Section 3(37) of ERISA), a defined benefit pension plan (as defined in Section
3(35) of ERISA) subject to Title IV of ERISA, a plan subject to the minimum
funding standards under Section 302 of ERISA or Section 412 of the Code, a plan
that is intended to be qualified under Section 401(a), a welfare plan that is
self-funded, a plan that owns employer stock or a plan that is funded, in whole
or in part, through a voluntary employees’ beneficiary association exempt from
Tax under Section 501(c)(9) of the Code.
(f) No present or former employees or directors of Target are
covered by any employee agreements or plans that provide or will provide
severance pay, post-termination health or life insurance benefits (except as
required pursuant to Section 4980(B) of the Code) or any similar benefits.
(g) No condition, agreement or Target Benefit Plan provision
limits the right of Parent or Merger Sub to amend, cut back or terminate any
Target Benefit Plan (except to the extent such limitation arises under ERISA).
Each Target Benefit Plan may be unilaterally amended or terminated in its
entirety without liability except as to (i) benefits accrued thereunder prior to
such amendment or termination or (ii) costs necessary to satisfy any notice
periods described in such Target Benefit Plan or funding vehicle.
(h) The execution, delivery, and performance by Target of this
Agreement or any Ancillary Agreement to which Target is or will be a party and
the consummation of the Transactions will not constitute an event under any
Target Benefit Plan that will (i) cause any Target Benefit Plan to increase
benefits payable to any participant or beneficiary, (ii) entitle any current or
former employee or director of Target to severance pay, unemployment
compensation or any other payment, benefit or award, or (iii) modify or result
in any payment (whether as severance pay or otherwise), acceleration, vesting,
or increases in benefits, awards or compensation with respect to any employee of
the Target.
4.13 Environmental Liability. Except as set forth in
Section 4.13 of the Target Disclosure Letter or the Target SEC Reports filed and
publicly available prior to the Agreement Date, including the September 30, 2014
Target Balance Sheet:
(a) The business of Target has been and is operated in
compliance in all material respects with all applicable Environmental Laws.
(b) Target has not caused or allowed the generation, treatment,
manufacture, processing, distribution, use, storage, discharge, release,
disposal, transport or handling of any Hazardous Substances, except in
compliance in all material respects with all Environmental Laws and in a manner
that does not give rise to any Liability under any Environmental Laws, and, to
Target’s Knowledge, no generation, treatment, manufacture, processing,
distribution, use, storage, discharge, release, disposal, transport or handling
of any Hazardous Substances has otherwise occurred at any property or facility
currently or formerly owned, leased or operated by Target, including the Target
Real Property, except in compliance in all material respects with all
Environmental Laws and in a manner that does not give rise to any Liability
under any Environmental Laws.
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(c) Target has not received any written notice from any
Governmental Authority or third party or, to the Knowledge of Target, any other
communication alleging or concerning any material violation by Target of, or
responsibility or liability of Target under, any Environmental Law. There are no
pending, or to the Knowledge of Target, threatened, claims, suits, actions,
proceedings or investigations with respect to the businesses or operations of
Target alleging or concerning any material violation of, or responsibility or
liability under, any Environmental Law, nor does Target have any Knowledge of
any fact or condition that could give rise to such a claim, suit, action,
proceeding or investigation.
(d) Target has obtained and is in compliance in all material
respects with all approvals, permits, licenses, registrations and similar
authorizations from all Governmental Authorities under all Environmental Laws
required for the operation and ownership of the Target Real Property, Target
Improvements and the businesses of Target as currently conducted, and there are
no pending or, to the Knowledge of Target, threatened, actions, proceedings or
investigations alleging violations of or seeking to modify, revoke or deny
renewal of any of such approvals, permits, licenses, registrations and
authorizations. Target does not have Knowledge of any fact or condition that is
reasonably likely to give rise to any action, proceeding or investigation
regarding the violation of or seeking to modify, revoke or deny renewal of any
such approvals, permits, licenses, registrations and authorizations.
(e) Without in any way limiting the generality of the
foregoing, to Target’s Knowledge, (i) all offsite locations where Target has
transported, released, discharged, stored, disposed or arranged for the disposal
of Hazardous Substances are and have been licensed and operating in all material
respects with Environmental Laws and (ii) no polychlorinated biphenyls
(“PCBs”), PCB-containing items, asbestos-containing materials, or
radioactive materials are now or have been used or stored at any property owned,
leased or operated by Target, except in compliance in all material respects with
Environmental Laws and in a manner that does not give rise to any Liability
under any Environmental Laws.
(f) No claims have been asserted or, to Target’s Knowledge,
threatened to be asserted against Target for any personal injury (including
wrongful death) or property damage (real or personal) arising out of alleged
exposure or otherwise related to Hazardous Substances used, handled, generated,
transported or disposed of by Target.
(g) No Lien has been attached or filed or is, to the Knowledge
of Target, threatened against Target in favor of any Person for (i) any
liability under or violation of any applicable Environmental Law, (ii) any
Release of Hazardous Substances or (iii) any imposition of Liability.
(h) No property currently or formerly owned or operated by
Target, including the Target Real Property, is listed on a List, and Target has
not received any notice that any such property is being considered for listing
on a List.
(i) All environmental audits, site assessments, risk
assessments, and other environmental reports and studies, including summaries of
any material test results or analytic data, conducted by, at the expense of, or
on behalf of Target or that are otherwise in the possession of Target have been
provided to Parent.
4.14 Compliance with Applicable Laws. Target holds all
approvals, licenses, permits, registrations, exemptions and similar
authorizations from Governmental Authorities and other Persons necessary for the
lawful conduct of its business as now conducted (the “Target Permits”).
Section 4.14 of the Target Disclosure Letter lists each of the Target Permits.
Except as set forth in the Target SEC Reports or in Section 4.14 of the Target Disclosure Letter,
Target has been and is in compliance with the terms of the Target Permits and
all applicable Laws in all material respects, and Target has not received any
notice from any Person that the business of Target has been or is being
conducted in violation of any applicable Law or the terms of any Target Permit
in any material respect. Target has not received any notice that any Target
Permit will be terminated or modified or cannot be renewed in the ordinary
course of business, and Target has no Knowledge of any reasonable basis for any
such termination, modification or non-renewal.
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4.15 Insurance. Section 4.15 of the Target Disclosure
Letter sets forth a complete and accurate list of each insurance policy under
which Target has been an insured, a named insured or otherwise the principal
beneficiary of coverage at any time during the past three years. Target has made
available or will make available prior to the Closing Date to Parent a true and
complete copy of each such policy that are in effect as of the date of this
Agreement. With respect to each such policy, neither Target, nor, to Target’s
Knowledge, any other party to the policy is in material breach or default
thereunder (including with respect to the payment of premiums or the giving of
notices), and Target does not know of any occurrence or any event which (with
notice or the lapse of time or both) would constitute such a breach or default
or permit termination, modification or acceleration under the policy. Target has
not received any notice that any of its policies cannot be renewed in the
ordinary course of business, and has no Knowledge of any reasonable basis for
any such non-renewal. All appropriate insurers under such insurance policies
have been notified of all potentially insurable losses and pending litigation
and legal matters, and no such insurer has informed Target of any denial of
coverage or reservation of rights thereto. Section 4.15 of the Target Disclosure
Letter describes any self-insurance arrangements affecting Target.
4.16 Properties; Mining Claims.
(a) Section 4.16 of the Target Disclosure Letter sets out all
of the real property owned, held, leased or controlled, whether legally or
beneficially for the benefit of Target, including (i) all material fee surface
and mineral property (“Target Fee Property”), (ii) all unpatented mining
claims (“Target Mining Claims”), and (iii) all real property leases,
mining leases, surface use agreements, rights-of-way, easements, or other
contracts with respect to real property (“Target Property Contracts”).
The Target Fee Property, Target Mining Claims and Target Property Contracts will
be collectively referred to hereinafter as the “Target Real
Property.”
(b) Except as provided in Section 4.16 of the Target Disclosure
Letter or the Target SEC Reports, Target owns good and marketable title to an
undivided one hundred percent (100%) record and beneficial interest in and to
the Target Real Property, in each case free and clear of any Liens, other than
Permitted Liens. Target has not leased, subleased, optioned, mortgaged, or
entered into other contract or agreement transferring any interest in the Target
Real Property, Target Property Contracts, Water Rights, Target Improvements, or
Target Listed Personal Property to any Person, and there are no actions, suits,
administrative or other proceedings pending, or, to Target’s Knowledge,
threatened against any of the Target Real Property. All ad valorem property and
other Taxes assessed against the Target Real Property have been timely and
properly paid.
(c) Except as set forth in Section 4.16(c) of the Target
Disclosure Letter or the Target SEC Reports, (i) all annual labor and assessment
work, rental fees or maintenance fees, license, royalty, and tax fees, and
filings with any Governmental Authority required to hold the Target Mining
Claims and the Target Property Contracts have been properly and timely
performed, paid or filed, in all material respects and all affidavits of annual
labor and assessment work and other filings required to maintain the Target Mining
Claims in good standing have been properly and timely recorded and filed with
the appropriate Governmental Authorities; (ii) the Target Mining Claims and
Target Property Contracts are free and clear of any claims or Liens except for
Permitted Liens, and there are no material conflicting claims by a third party
with respect to the lands covered by the Target Mining Claims or Target Property
Contracts; and (iii) there are no royalties or similar types of obligations
payable or required to be paid to any Person having an interest in the Target
Mining Claims or Target Property Contracts.
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(d) All Target Property Contracts are in good standing, valid
and effective in accordance with their respective terms, Target has performed
all of its material obligations thereunder, and there is not, under any of such
Target Property Contracts any existing default or event of default (or event
which with notice or lapse or time, or both would constitute a default; or would
constitute a basis of force majeure or other claim of excusable delay or
non-performance) of Target or the other party to the Property Contract. To
Target’s Knowledge, the party granting Target rights to the properties covered
by those Target Property Contracts owns good and marketable title to those
properties, free and clear of all Liens, other than Permitted Liens.
(e) Section 4.16(e) of the Target Disclosure Letter sets out
water rights owned, held, leased or controlled, whether legally or beneficially
for the benefit of Target, including all surface and underground water and water
rights, including but not limited to certificates, licenses, and permits,
together with all applications for water rights or applications or permits for
the use, transfer or change of water rights, ditch and ditch rights, well and
well rights, reservoir and reservoir rights, stock or interests in irrigation or
ditch companies appurtenant to the Target Real Property and all other rights to
water for use at or in connection with the Target Real Property or the mining of
minerals from the Target Real Property (“Water Rights”). Except as set
forth in Section 4.16(e) of the Target Disclosure Letter, (i) Target owns good
and marketable title to an undivided one hundred percent (100%) record and
beneficial interest in and to the Water Rights, free and clear of all Liens,
except for Permitted Liens, and (ii) the Water Rights are sufficient to conduct
the operations and activities of the Target as they are currently being
conducted.
(f) Section 4.16(f) of the Target Disclosure Letter sets out
improvements (“Target Improvements”) to the Target Real Property
and personal property (“Target Listed Personal Property”) owned,
held, leased or controlled, whether legally or beneficially for the benefit of
Target. Except as set forth in Section 4.16(f) of the Target Disclosure Letter,
(i) Target owns good and marketable title to an undivided one hundred percent
(100%) interest in and to all Target Improvements and Target Listed Personal
Property, free and clear of all Liens, except for Permitted Liens, and (ii) all
Target Improvements and Target Listed Personal Property are in good condition
and repair, ordinary wear excepted, and are suitable for the purposes for which
they are currently used by Target.
(g) Except as set forth in Section 4.16(g) of the Target
Disclosure Letter, Target owns or leases all of the assets, tangible and
intangible, of any nature whatsoever, necessary to operate its business and
their business as currently conducted.
(h) Except as disclosed in Section 4.16(h) of the Target
Disclosure Letter, Target has now and, immediately following the consummation of
the transactions contemplated by this Agreement, will have the right to occupy
and use each of its Real Properties and Target Improvements in the same manner
currently occupied and used by Target to conduct its business as presently
conducted.
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(i) Target is not obligated under any forward sale or advanced
sale contract with respect to minerals produced or producible from the Target
Real Property under which sales proceeds are paid by the purchaser in advance of
delivery.
(j) Target has made available to Parent Parties all
information, data, geological and geophysical test results, maps and surveys in
the possession of Target that might reasonably be expected to be material to a
prospective purchaser of the Target or that have been requested by Parent
relating to Target and its properties and business, and Target has not withheld
from Parent Parties any such information, data, test results, maps or surveys.
Target represents and warrants that all such information, data, test results,
maps and surveys were prepared or procured by Target in the ordinary course of
business.
(k) Each of the technical reports prepared by or on behalf of
Target and filed by Target on SEDAR (the “Target 43-101 Technical
Reports”) was prepared in good faith and in the ordinary course of business
and in accordance with the requirements of NI 43-101. To Target’s Knowledge, the
estimates of mineral reserves and resources reflected in the Target 43-101
Technical Reports were estimated in good faith using methods and based on
assumptions considered reasonable at the time of estimation on the basis of
drill and test data generated and compiled in accordance with prudent mining and
engineering practice. The mine plans of Target listed in Section 4.16 of the
Target Disclosure Letter, including the financial forecasts and budgets include
therein and the studies related thereto (i) have been prepared by management of
Target in good faith and in the ordinary course of business, and (ii) are based
on assumptions, including assumptions relating to mining operations, capital and
operating costs and production rates, that are considered by management to be
reasonable, as at the date the mine plans were prepared, for the purpose of
planning the future mining operations of Target, provided that Parent
acknowledges that Target provides no assurance as to the future uranium prices
used in such mine plans, other than where the uranium prices reflect contractual
prices for uranium to be delivered under existing supply agreements.
4.17 Material Contracts. Set forth in Section 4.17 of
the Target Disclosure Letter is a complete and accurate list of each Material
Contract (which list sets forth the parties to each such agreement and the date
on which such agreement was entered into) to which Target is a party or by which
Target or any of its assets are bound. Target has provided or will make
available to Parent prior to the Closing Date true and complete copies of all
Material Contracts unless otherwise available in Target SEC Reports. Except as
set forth in Section 4.17 of the Target Disclosure Letter, each Material
Contract is valid and binding and in full force and effect and Target has
performed all obligations required to be performed by them under each Material
Contract in all material respects. To Target’s Knowledge, there does not exist,
nor has Target received written notice of, any material breach of or violation
or default under, any of the terms, conditions or provisions of any Material
Contract and Target has not received written notice of the desire of the other
party or parties to any such contract to exercise any rights such party has to
cancel, terminate or repudiate such contract or exercise remedies thereunder
that would be reasonably likely to have a Material Adverse Effect with respect
to Target. Subject to the Enforceability Exception, each Material Contract is
enforceable by Target in accordance with its terms.
4.18 Required Shareholder Vote. The affirmative vote of
(i) the holders of a majority of the outstanding Target Common Shares entitled
to vote at the Target Meeting at a duly convened and held shareholder meeting at
which a quorum is present (the “Target Shareholders’ Approval”) and (ii)
a majority of the Target Common Shares cast at the Target Meeting exclusive of
all Target Common Shares owned, directly or indirectly, by the Parent Parties or
the officers or directors of Target (the “Unaffiliated Shareholders’
Approval”, collectively, the “Target Shareholder Approvals”) are the
only votes required of the holders of any class or series of Target’s capital stock
that shall be necessary to adopt this Agreement and to consummate the
Transactions.
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4.19 Form F-4 and Proxy Statement/Prospectus. None of
the information to be supplied by Target specifically for inclusion in (a) the
registration statement on Form F-4 to be filed by Parent with the SEC in
connection with the issuance of Parent Common Shares in the Merger or (b) the
proxy statement on Schedule 14A relating to the Target Meeting to be filed by
Target, which will also constitute the prospectus in respect of Parent Common
Shares registered by means of the Form F-4 to be filed by Parent (the “Proxy
Statement/Prospectus”), to be filed by Target and Parent with the SEC, in
each case, and any amendments or supplements thereto, will, in the case of the
Proxy Statement/Prospectus, at the time the Proxy Statement/Prospectus or any
amendment or supplement thereto is first mailed to the Target shareholders and
at the time of the Target Meeting, and, in the case of the Form F-4, when it
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be made therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading, except that no
representation or warranty is made by Target with respect to statements made or
incorporated by reference in the Form F-4 or the Proxy Statement/Prospectus
based on information supplied by Parent, Merger Sub or any of their
Representatives for inclusion or incorporation by reference therein.
4.20 Intellectual Property. Except as set forth in
Section 4.20 of the Target Disclosure Letter, the Target owns, licenses or
otherwise possesses title to or the right to use all patents, trademarks,
service marks, trade names, registered copyrights and applications therefor
owned by or registered in the name of Target, together with all other material
intellectual property assets, including computer software, owned or licensed by
Target, and, in either case, used by the Target in connection with the operation
and conduct of its business (collectively, the “Target Intellectual
Property”). The Target Intellectual Property set forth in Section 4.20 of
the Target Disclosure Letter constitutes all material intellectual property used
by the Target in connection with the conduct and operation of its business.
Except as set forth in Section 4.20 of the Target Disclosure Letter, Parent will
have the right to use the Target Intellectual Property following the Closing. To
the Knowledge of Target, it is not infringing any valid patent right, trademark,
service mark, trade name, copyright or other intellectual property right of any
third party in connection with its use of the Target Intellectual Property that
would be reasonably likely to have a Material Adverse Effect with respect to
Target.
4.21 Affiliate Transactions. Target has not entered into
any agreements, contracts, commitments or transactions (other than Target
Benefit Plans), whether or not entered into in the ordinary course of business,
to or by which Target, on the one hand, and any of its officers, directors or
affiliates (or any affiliates of such officers or directors), on the other hand,
are or have been a party or are otherwise bound or affected and that (a) are
currently pending or proposed, in effect or have been in effect at any time
since January 1, 2012 or (b) involve continuing Liabilities and obligations to
or of Target.
4.22 Brokers. No broker, finder or investment banker
(other than Haywood Securities Inc. (“Haywood”) and Euro Pacific Canada
Inc. (“Euro Pacific”) the fees and expenses of which will be paid by
Target at Closing) is entitled to any brokerage, finder’s fee or other fee or
commission payable by Target in connection with the Transactions based upon
arrangements made by and on behalf of Target. Target has heretofore furnished to
Parent a true and complete copy of all agreements between Target and Haywood and
Euro Pacific pursuant to which such firms would be entitled to any payment
relating to the Transactions.
4.23 FIRPTA. The Target Common Shares shall be
“regularly traded” on an established securities exchange within the meaning of
Treasury Regulation Section 1.897 -9T(d). Other than as disclosed in Section
4.23 of the Target Disclosure Letter, no Target shareholder who is a “foreign
person” (as defined in Section 1445(f)(3)) holds or has held more than
5% of Target Common Shares at any time during the 5-year period ending on
Closing Date.
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4.24 Fairness Opinion; Board Approval.
(a) Target’s board of directors has received a written opinion
dated January 2, 2015 from Euro Pacific to the effect that, as of the date of
such opinion, the Exchange Ratio is fair, from a financial point of view, to the
holders of the Target Common Shares (other than Parent and its affiliates). A
true and complete copy of such opinion has been provided to Parent.
(b) Target’s board of directors, at a meeting duly called and
held, unanimously (i) determined that this Agreement and the Transactions are
advisable and are fair to, and in the best interests of, the shareholders of
Target, (ii) approved this Agreement and the Transactions and (iii) recommended
approval and adoption of this Agreement and the Merger and the Transactions by
the shareholders of Target.
4.25 Controls and Procedures. Except as set forth in the
Target SEC Reports and Target SEDAR Reports, Target has established and
maintains “disclosure controls and procedures” that are reasonably designed to
ensure that all material information (both financial and non-financial) required
to be disclosed by Target in the reports that it is required to file under
applicable Laws (including applicable securities Laws) is recorded, processed,
summarized and reported within the time periods specified in the applicable Laws
and that all such information is accumulated and communicated to Target’s
management as appropriate to allow timely decisions regarding required
disclosure and to make the certifications of the chief executive officer and
chief financial officer of Target required under applicable Laws (including
applicable securities Laws) with respect to such reports. Except as set forth in
Section 4.25 of the Target Disclosure Letter, in the Target SEC Reports or
Target SEDAR Reports, neither Target nor its independent auditors have
identified any “significant deficiencies” or “material weaknesses” in Target’s
internal controls as contemplated under applicable Laws (including applicable
securities Laws and Section 404 of the Sarbanes-Oxley Act). Target has made or
will make available to Parent prior to the Closing Date true and complete copies
of any disclosures made by management to Target’s auditors and audit committee
regarding such significant deficiencies or material weaknesses. Target has no
Knowledge of any material complaint, allegation, assertion or claim, whether
written or oral, regarding the accounting or auditing practices, procedures,
methodologies or methods of Target or its internal accounting controls,
including any material complaint, allegation, assertion or claim that Target has
engaged in questionable accounting or auditing practices. No attorney
representing Target, whether or not employed by Target, has reported evidence of
a violation of securities laws, breach of fiduciary duty or similar violation by
Target or any of its officers, directors, employees or agents to the board of
directors of Target or any committee thereof or to any director or officer of
Target. Target has not granted any waivers with respect to its policies
regarding ethical conduct.
4.26 Takeover Matters. Target does not have any
applicable anti-takeover provision in its articles of incorporation or bylaws.
Target and Target’s board of directors have each taken all actions necessary to
be taken such that the Target Rights Plan is not, or at the Effective Time will
not be, applicable to Target, Parent, Merger Sub, the Target Common Shares, the
Voting Agreements, this Agreement or the Transactions.
4.27 Related Party Transactions. Except as set forth in
the Target SEC Reports and Target SEDAR Reports, the Target has not, and, to the
knowledge of the Target, has not been deemed to have for purposes of any
applicable Law, engaged in or been party to any transaction with any of its
officers, directors, employees or direct or indirect shareholders or, to the
knowledge of the Target, any member of their immediate families (i) acquired or
have the use of property for proceeds greater than the fair market value thereof, (ii) received services or have the use of
property for consideration other than the fair market value thereof, or (iii)
received interest or any other amount other than at a fair market value rate
from any person with whom it does not deal at arm’s length within the meaning of
applicable taxation acts. Except as set forth in the Target SEC Reports and
Target SEDAR Reports, the Target has not, and, to the knowledge of the Target,
has not been deemed to have for purposes of any applicable Law, engaged in or
been party to any transaction with any of its officers, directors, employees or
direct or indirect shareholders or, to the knowledge of the Target, any member
of their immediate families (i) disposed of the property for proceeds less than
the fair market value thereof, (ii) performed services for consideration other
than the fair market value thereof or (iii) paid interest or any other amount
other than at a fair market value rate to any person with whom it does not deal
at arm’s length within the meaning of applicable acts. Except as set forth in
the Target SEC Reports and Target SEDAR Reports and to the knowledge of the
Target, none of the officers, directors and employees of the Target, no
shareholder of the Target and no immediate family member of an officer,
director, employee or such beneficial owner, has a direct ownership interest of
more than five percent (5%) of the equity ownership of any firm or corporation
that competes with, or does business with, or has any contractual arrangement
with, the Target. Since the date of 2013Target Balance Sheet, no event has
occurred that would be required to be reported as a “certain relationship of
related transaction” pursuant to Item 404 of Regulation S-K of the SEC.
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4.28 Compliance with the U.S. Foreign Corrupt Practices Act
and Other Applicable Anti-Corruption Laws.
(a) Target has complied with the U.S. Foreign Corrupt Practices
Act of 1977 and other applicable anti-corruption laws.
(b) Neither Target nor any director, officer, agent, employee
or representative of Target at the direction of or on behalf of Target corruptly
or otherwise illegally offered or gave anything of value to: (i) any official,
employee or representative of a Governmental Authority, any political party or
official thereof, or any candidate for political office; or (ii) any other
Person, in any such case while knowing, or having reason to know, that all or a
portion of such money or thing of value may be offered, given or promised,
directly or indirectly, to any official, employee or representative of a
Governmental Authority, any political party or official thereof, or candidate
for political office for the purpose of the following: (x) influencing any
action or decision of such Person, in his or her official capacity, including a
decision to fail to perform his or her official function; (y) inducing such
Person to use his or her influence with any Governmental Authority to affect or
influence any act or decision of such Governmental Authority to assist in
obtaining or retaining business or to secure an improper business advantage; or
(z) where such payment would constitute a bribe, kickback or illegal or improper
payment to assist Target in obtaining or retaining business for, or with, or
directing business to, any Person or in securing any improper advantage.
(c) There have been no false or fictitious entries made in the
books or records of Target relating to any illegal payment or secret or
unrecorded fund and Target has not established or maintained a secret or
unrecorded fund.
4.29 Powers of Attorney. Except as disclosed in Section
4.29 of the Target Disclosure Letter, there are no powers of attorney executed
on behalf of the Target.
4.30 Books and Records. To the Knowledge of the Target,
the minute books and other similar records of the Target for the most recent
three full fiscal years and any interim period contain a true and complete
record, in all material respects, of all actions taken at all meetings and by
all written consents in lieu of meetings of the stockholders, the boards of directors
(and other similar governing bodies) and committees of the boards of directors
(and other similar governing bodies) of the Target.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT PARTIES
Except as set forth in the disclosure letter delivered by
Parent to Target contemporaneously with the execution hereof (the “Parent
Disclosure Letter”), each of Parent and Merger Sub represent and warrant to
Target, unless another date is specifically referenced in a particular
representation or warranty, as of the Agreement Date and as of the Closing Date,
that the representations and warranties contained in this Article V are true and
correct on and as of such dates. For purposes of this Agreement, a document
shall be deemed to have been “made available” by Parent to Target if it is
publicly available through EDGAR or SEDAR:
5.1 Organization and Qualification.
(a) Parent and each of its Subsidiaries are corporations or
other entities, are validly existing and in good standing under the laws of the
jurisdiction of their respective incorporation or organization, and have all
requisite corporate or other power and authority to own, lease, use and operate
their properties and to carry on their respective business as it is now being
conducted.
(b) Parent and each of its Subsidiaries are duly qualified or
licensed to do business as foreign corporations and are in good standing in each
jurisdiction in which such qualification or licensing is required, except for
such failures to be so qualified or licensed as would not, individually or in
the aggregate, be reasonably likely to have a Material Adverse Effect with
respect to Parent or Merger Sub. Section 5.1(b) of the Parent Disclosure Letter
sets forth a true and correct list of all of the jurisdictions in which Parent
and each of its Subsidiaries are qualified or licensed to do business as foreign
corporations.
(c) Section 5.1(c) of the Parent Disclosure Letter sets forth a
true and correct list of all of the Subsidiaries of Parent and their respective
jurisdictions of incorporation or organization. None of Parent or its
Subsidiaries owns any equity interest in any Person other than as set forth in
Section 5.1(c) of the Parent Disclosure Letter.
(d) Parent has previously delivered to Target a true and
complete copy of its articles of incorporation and bylaws, in each case as
amended through the Agreement Date, and has made available the articles of
incorporation, bylaws or other organizational documents of each of the Parent
Material Subsidiaries, in each case as amended through the Agreement Date.
Neither Parent nor any of the Parent Material Subsidiaries is in violation of
its articles or certificate of incorporation, as applicable or other similar
governing documents.
(e) Parent is the sole shareholder, and owns all of the issued
and outstanding stock, of Energy Fuels Holdings Corp., a company incorporated
under the laws of the State of Delaware, and Energy Fuels Holdings Corp., is the
sole shareholder, and owns all of the issued and outstanding stock, of Merger
Sub.
5.2 Capitalization.
(a) Parent is authorized to issue an unlimited number of Parent
Common Shares, as well as an unlimited number of preferred shares issuable in
series, and an unlimited number of series A preferred shares (the preferred shares collectively,
the “Parent Preferred Shares”). As of the Agreement Date, there are: (i)
19,677,552 Parent Common Shares issued and outstanding (not including 20,920
treasury shares held by a subsidiary of the Parent); (ii) 905,413 options to
acquire Parent Common Shares outstanding (“Parent Options”), 902,620 of
which have been issued and are governed by the stock option plan of the Parent
dated March 2014 (the “Parent Stock Option Plan”) and 2,793 issued
in connection with the acquisition of Strathmore Mineral Corp.; (iii) nil Parent
Preferred Shares issued or outstanding; (iv) 1,079,069 Parent Common Shares
reserved for issuance upon the exercise of currently outstanding warrants (the
“Parent Warrants”); (v) 1,466,665 Parent Common Shares reserved
for issuance upon the conversion of currently outstanding convertible debentures
(“Parent Debentures”) and (vi) a number of rights equivalent to the
number of Parent Common Shares issued and outstanding have been issued and are
outstanding pursuant to a Shareholder Rights Plan adopted by Parent effective as
of March 19, 2009 and reconfirmed on February 10, 2012 (“Parent Rights
Plan”). All outstanding Parent Common Shares have been duly authorized and
are validly issued and outstanding as fully paid and non-assessable shares and
were not issued in violation of any purchase option, call option, right of first
refusal, preemptive right or other similar right. Other than as set forth in
Section 5.2(a) of the Parent Disclosure Letter, neither Parent nor any of its
Subsidiaries has agreed to register any securities under the Securities Act or
any state securities laws.
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(b) Except as set forth in Section 5.2(a) of this Agreement or
in Section 5.2(b) of the Parent Disclosure Letter, there are no authorized or
outstanding (i) options, warrants, preemptive rights, subscriptions, calls or
other rights, convertible securities, agreements, stock appreciation rights,
phantom equity or other claims or commitments of any character (including
“rights plans” or “poison pills”) that may obligate Parent or any of its
Subsidiaries to issue, transfer or sell any shares of capital stock or other
equity interest in Parent or any of its Subsidiaries, or securities convertible
into or exchangeable for such shares or equity interests, (ii) contractual
obligations of Parent or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any capital stock or other equity interest of Parent or any of
its Subsidiaries or any securities or agreements listed in clause (i) of this
sentence, or (iii) voting trusts or similar agreements to which Parent or any of
its Subsidiaries is a party with respect to the voting of the capital stock or
other equity interests of Parent or any of its Subsidiaries.
(c) Parent is, directly or indirectly, the record and
beneficial owner of all of the outstanding equity interests of each Subsidiary
of Parent, and holds such shares or interests free and clear of all Liens other
than statutory Liens for Taxes not yet due and payable.
(d) Except as disclosed in the Parent SEC Reports and/or the
Parent SEDAR Reports, there are no outstanding bonds, debentures, notes or other
evidences of indebtedness of Parent having the right to vote (or convertible
into, or exchangeable for, securities having the right to vote) with the
shareholders or other equity holders of Parent or any of its Subsidiaries,
whether together or as a separate class, on any matters on which such holders
may vote.
(e) Section 5.2(e) of the Parent Disclosure Letter sets forth
the following information with respect to the Parent Stock Options outstanding
as of the Agreement Date: (i) the number of Parent Common Shares issuable upon
exercise thereof, (ii) the exercise price and (iii) the termination date. The
completion of the Merger and the transactions contemplated by this Agreement
will not result in the acceleration of the vesting of any of the Parent Options
and the board of directors of Parent will not undertake any action that would
result in a “change of control” being deemed to have occurred under the Parent
Stock Option Plan.
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5.3 Authority; Validity of Agreement. Each of the Parent
Parties has full corporate power and authority to execute and deliver this
Agreement and any Ancillary Agreements to which it is or will be a party and,
subject to obtaining the Parent Shareholders’ Approval, to consummate the
Transactions. The execution, delivery and performance of this Agreement and the
Ancillary Agreements to which each of the Parent Parties is or will be a party
and the consummation of the Transactions have been duly and validly authorized
by all necessary corporate action, and no other corporate proceedings on the
part of the Parent Parties are necessary to authorize this Agreement and any
Ancillary Agreements to which it is or will be a party or to consummate the
Transactions, other than the Parent Shareholders’ Approval. This Agreement has
been, and the Ancillary Agreements to which each of the Parent Parties is or
will be a party are, or upon execution will be, duly and validly executed and
delivered by the Parent Parties, as applicable, and, assuming the due
authorization, execution and delivery hereof and thereof by the other parties
hereto and thereto, constitutes, or upon execution will constitute, valid and
binding obligations of the Parent Parties, as the case may be, enforceable
against the Parent Parties, as the case may be, in accordance with their
respective terms, subject to the Enforceability Exception.
5.4 No Violation; Consents and Approvals.
(a) The execution and delivery of this Agreement and any
Ancillary Agreement to which Parent or Merger Sub is or will be a party, the
consummation of the Transactions and the performance by each of Parent or Merger
Sub of its obligations hereunder and thereunder will not (i) conflict with any
provision of the articles or certificate of incorporation, as applicable, of
Parent or Merger Sub, (ii) Except as set forth in Section 5.4(a) of the Parent
Disclosure Letter, result in any violation of, or the breach of, or constitute a
default (with notice or lapse of time or both) under, or give rise to any right
of termination, cancellation or acceleration or guaranteed payments or a loss of
any benefit under, or the acceleration of performance, vesting or an increase in
compensation or benefit required by, or the creation of any Lien upon any equity
interests in or assets of Parent or any of its Subsidiaries under, any of the
terms, conditions or provisions of any note, lease, mortgage, license, plan,
agreement or other instrument or obligation to which Target or any of its
Subsidiaries is a party or by which Parent or any of its Subsidiaries or any of
their respective properties or assets may be bound, including the trust
indenture relating to the outstanding Parent Debentures, or (iii) violate the
provisions of any Law applicable to Parent or any of its Subsidiaries, except,
in the case of clauses (ii) and (iii), for such violations, breaches, defaults,
or rights of termination, cancellation or acceleration that, individually or in
the aggregate, would not be reasonably likely to have a Material Adverse Effect
with respect to Parent or Merger Sub, materially impair the ability of Parent or
Merger Sub to perform its obligations under this Agreement or any Ancillary
Agreement or be reasonably likely to prevent or materially delay the
consummation of any of the Transactions.
(b) No material filing or registration with, declaration or
notification to, or order, authorization, consent or approval of, any
Governmental Authority or any other Person is required in connection with the
execution and delivery of this Agreement or any Ancillary Agreement to which
either of the Parent Parties is or will be a party and the consummation of the
Transactions by Parent or Merger Sub and the performance by either Parent or
Merger Sub of its obligations hereunder or thereunder, except for (i) the filing
with the SEC of the Form F-4, the Proxy Statement/Prospectus in definitive form
and the filing and declaration of effectiveness of the Form F-4, (ii) the
receipt of the Parent Shareholders’ Approval, (iii) the filing with the Canadian
Securities Regulatory Authorities on SEDAR and the furnishing of such filings to
the SEC on EDGAR as may be required in connection with this Agreement and the
other transactions contemplated by this Agreement, including the information
circular in connection with the Parent Meeting, (iv) any consents,
authorizations, approvals, filings or exemptions in connection with rules and
policies of the NYSE MKT and TSX, (v) such filings, authorizations or approvals
as may be required under the HSR Act, (vi) the filing of the
Articles of Merger, (vii) the approval of the State of Utah Division of
Radiation Control with respect to any change of control of the White Mesa Mill
Radioactive Material License and Groundwater Discharge Permit and Air Approval
Order and (viii) such consents, approvals, orders, authorizations,
notifications, registrations, declarations and filings (A) as are customarily
made or obtained in connection with the transfer of interests in or change of
control of ownership of mining and milling properties and (B) the failure of
which to be obtained or made, individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect with respect to Parent or
Merger Sub, materially impair the ability of Parent or Merger Sub to perform its
obligations under this Agreement or any Ancillary Agreement or be reasonably
likely to prevent or materially delay the consummation of any of the
Transactions.
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(c) The execution and delivery of this Agreement and any
Ancillary Agreement to which Parent or Merger Sub is or will be a party, the
consummation of the Transactions and the performance by each of Parent or Merger
Sub of its obligations hereunder and thereunder will not trigger any severance,
termination or other payment or any right to claim such a payment other than any
employment agreement as set forth in Section 5.12(f) of the Parent Disclosure
Letter to which Parent or any of its subsidiaries are party to with any
director, officer or employee of Parent of any subsidiary of Parent.
5.5 Parent Reports.
(a) Parent has timely filed with or furnished to the SEC, and
has heretofore made available to Target true and complete copies of, each form,
registration statement, report, schedule, proxy or information statement and
other document (including exhibits and amendments thereto), required to be
filed, furnished or submitted by it with the SEC or mailed to its shareholders
pursuant to the Securities Act, the Exchange Act or rules promulgated thereunder
since January 1, 2012 (collectively, the “Parent SEC Reports”). As of
their respective dates (or, if any Parent SEC Reports were amended, as of the
date such amendment was filed with the SEC), each Parent SEC Report, including
any financial statements or schedules included therein and as amended, if
amended, (a) complied in all material respects with all applicable requirements
of the Securities Act and the Exchange Act, as the case may be, and the
applicable rules promulgated thereunder and (b) did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. No event since the
date of the last Parent SEC Report has occurred that would require Parent to
file a Current Report on Form 6-K other than the execution of this Agreement.
(b) Copies of Parent’s prospectuses, financial statements,
management discussion & analysis, annual information forms, management
information circulars, material change reports and other public disclosure
documents (including exhibits and amendments thereto, and documents incorporated
by reference therein) filed with or furnished to the securities regulatory
authorities in the Provinces of Canada in which Parent is a “reporting issuer”
or equivalent (“Canadian Securities Regulatory Authorities”) since
January 1, 2012 (collectively, the “Parent SEDAR Reports”) are
available online through SEDAR. Parent has timely filed each of the Parent SEDAR
Reports required to be filed or submitted by it or mailed to its shareholders
pursuant to the applicable securities legislation (including any rules and
regulation promulgated thereunder) of each of the Provinces of Canada in which
Parent is a “reporting issuer” or equivalent. As of their respective dates (or,
if any Parent SEDAR Reports were amended, as of the date such amendment was
filed on SEDAR), each Parent SEDAR Report, including any financial statements or
schedules included therein, (i) complied in all material respects with all applicable requirements of such applicable securities
legislation and (ii) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading
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(c) The Chief Executive Officer and Chief Financial Officer of
Parent have made all certifications (without qualification or exception to the
matters certified) required by, and would be able to make such certifications
(without qualification or exception to the matters certified) if required to do
so as of such dates pursuant to the applicable securities legislation (including
any rules and regulation promulgated thereunder) of each of the Provinces of
Canada in which Parent is a “reporting issuer” or equivalent, the Sarbanes-Oxley
Act and any related rules and regulations promulgated by the SEC, and the
statements contained in any such certifications are complete and correct.
(d) Except as disclosed in either the Parent SEC Reports or the
Parent SEDAR Reports, neither Parent nor any of its officers has received any
notice from any Governmental Authority questioning or challenging the accuracy,
completeness, form or manner of filing or submission of such certifications.
(e) To the Knowledge of Parent, each director and executive
officer of Parent has filed all required insider reports under Canadian
securities laws.
(f) Except as set forth in either the Parent SEC Reports or
Parent SEDAR Reports, Parent is otherwise in compliance in all material respects
with all applicable provisions of the Sarbanes-Oxley Act and the applicable
rules of the TSX and NYSE MKT.
5.6 Financial Statements. Each of the audited
consolidated financial statements and unaudited consolidated interim financial
statements of Parent (including any related notes and schedules) included or
incorporated by reference in the Parent SEDAR Reports has been or will be
prepared from, and is or will be in accordance with, the books and records of
Parent and its consolidated Subsidiaries, complies or will comply in all
material respects with applicable accounting requirements and with the published
rules and regulations of applicable Canadian securities law with respect thereto
as in effect at the time of filing, has been or will be prepared in accordance
with International Financial Reporting Standards (“IFRS”) (except as may
be indicated in the notes thereto and subject, in the case of interim financial
statements, to normal and recurring year-end adjustments that, individually or
in the aggregate, would not be reasonably likely to have a Material Adverse
Effect with respect to Parent) and fairly presents or will fairly present the
consolidated financial position of Parent and its Subsidiaries as of the date
thereof and the consolidated results of operations, cash flows and changes in
financial position of Parent and its Subsidiaries for the periods presented
therein.
5.7 Absence of Undisclosed Liabilities. Except as and to
the extent (i) set forth on the consolidated balance sheet of Parent and its
Subsidiaries as at December 31, 2013, including the notes thereto (the “2013
Parent Balance Sheet”), (ii) set forth on the unaudited consolidated balance
sheet of Parent and its Subsidiaries as at September 30, 2014, including the
notes thereto (the “September 30, 2014 Parent Balance Sheet”)
(each of the 2013 Parent Balance Sheet and the September 30, 2014 Parent Balance
Sheet as filed on SEDAR), or (iii) specifically and individually described in
Section 5.7 of the Parent Disclosure Letter, neither Parent nor any of its
Subsidiaries has any Liability required to be reflected or reserved against in a
consolidated balance sheet of Parent prepared in accordance with IFRS as applied
in preparing the 2013 Parent Balance Sheet or the September 2014 Parent Balance
Sheet, as applicable, except for Liabilities that would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
with respect to Parent.
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5.8 Off-Balance Sheet Arrangements Neither the Parent
nor any of its Subsidiaries is a party to, or has any commitment to become a
party to, any "off balance sheet arrangements", as defined in Item 303(a) of
Regulation S-K under the Exchange Act.
5.9 Absence of Certain Changes. Except as (i) disclosed
in either the Parent SEC Reports or Parent SEDAR Reports filed and publicly
available prior to the Agreement Date, including the September 30, 2014 Parent
Balance Sheet; (ii) contemplated by this Agreement, or (iii) set forth in
Section 5.9 of the Parent Disclosure Letter, as of the date of this Agreement,
except for Sections 5.9(a), 5.9(b) and 5.9(o) which shall be true as of the date
of this Agreement and as of the Closing Date, Parent and its Subsidiaries have
conducted their respective businesses only in the ordinary course of business
consistent with past practice since December 31, 2013 and since December 31,
2013:
(a) there has not been any change or development that,
individually or in the aggregate, has had or would be reasonably likely to have
had a Material Adverse Effect with respect to Parent;
(b) there has not been any material damage, destruction or
other casualty loss with respect to any material asset or property owned, leased
or otherwise used by Parent or its Subsidiaries, whether or not covered by
insurance;
(c) there has not been any amendment or change in the Parent’s
organizational documents;
(d) there has not been any incurrence, creation or assumption
of (i) any Lien on any of its assets or properties (other than Permitted Liens)
or (ii) any Liability as a guarantor or surety with respect to the obligations
of any Person other than a Subsidiary of the Parent other than in the ordinary
course of business consistent with past practice;
(e) there has not been any increase or agreement to increase
the wages, salaries or compensation payable to any officer, employee or director
from the amount thereof in effect as of September 30, 2014, other than increases
in wages, salaries and other cash compensation in the ordinary course of
business consistent with past practice;
(f) there has not been a grant of, or change in, any severance
or termination pay, other than with respect to new employment agreements entered
into in the ordinary course of business consistent with past practice;
(g) the Parent has not entered into or made any loans to any of
its officers, directors or employees or made any change in its borrowing or
lending arrangements for or on behalf of any of such Persons;
(h) the Parent has not adopted or amended, or accelerated the
payment or vesting of benefits under, any Parent Benefit Plan;
(i) the Parent has not declared, set aside or paid any dividend
or other distribution (whether in cash, stock or property) with respect to any
of Parent’s capital stock;
(j) the Parent has not effected or authorized any split,
combination or reclassification of any of Parent’s capital stock or any issuance
thereof or issued any other securities in respect of, in lieu of or in
substitution for shares of Parent’s capital stock, except for issuances of
Parent Common Shares upon the exercise of Parent Options or Parent
Warrants, in each case, in accordance with their terms at the time of exercise,
30
(k) there has not been any material change, and the Parent does
not have Knowledge of any reason that would require any material change, in any
accounting methods (or underlying assumptions), principles or practices of
Parent or its Subsidiaries or any revaluation of any of its assets;
(l) the Parent has not made or changed any material Tax
election, or settled or compromised any material income Tax liability, or
materially amended any Tax Return;
(m) the Parent has not acquired any material assets, or sold,
leased, exchanged, transferred, licensed, farmed-out or otherwise disposed of
any material assets, in each case other than in the ordinary course of business
consistent with past practice;
(n) the Parent has not discharged or satisfied any Indebtedness
or paid any obligation or Liability, other than current Liabilities incurred and
paid in the ordinary course of business and consistent with past practice;
(o) there has not been the commencement of any action, suit,
arbitration, mediation, proceeding, claim or investigation, or receipt notice
of, or a threat of any action, suit, arbitration, mediation, proceeding, claim
or investigation against the Parent and its Subsidiaries relating to any of its
business, properties or assets; and
(p) the Parent has not made any agreement or commitment
(contingent or otherwise) to do any of the foregoing.
5.10 Taxes. Except as set forth in Section 5.10 of the
Parent Disclosure Letter:
(a) Parent and each of its Subsidiaries have timely filed or
will file all Tax Returns required by applicable Law to be filed by any of them
prior to or as of the Closing Date. As of the Closing Date, the foregoing Tax
Returns were true and correct and prepared in compliance with applicable law in
all material respects. The unpaid Taxes of Parent or its Subsidiaries did not,
as of the most recent fiscal month end, exceed the reserve for Tax Liability
(rather than any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) set forth on the face of the 2013
Parent Balance Sheet (rather than in any notes thereto) and do not exceed that
reserve as adjusted for the passage of time through the Closing Date in
accordance with the past custom and practice of Parent and its Subsidiaries in
filing their Tax Returns, and such reserve fully accounts for all Tax accrued or
accruing for all periods up to the date of such 2013 Parent Balance Sheet.
Neither Parent, nor any of its Subsidiaries currently is the beneficiary of any
extension of time within which to file any Tax Return. Parent has made available
or will make available prior to the Closing Date true and complete copies of its
Tax Returns to Parent for all periods beginning on or after January 1, 2010.
(b) Parent and each of its Subsidiaries have paid all Taxes due
with respect to any period ending prior to or as of the Closing Date except
where failure to pay any such Taxes will not have a Material Adverse Effect with
respect to Parent. Parent and each of its Subsidiaries have withheld and paid
all Taxes required to have been withheld and paid in connection with any amounts
paid or owing to any employee, director, officer, agent, independent contractor,
creditor, shareholder, or other third party, except where failure to pay or
withhold any such Taxes will not have a Material Adverse Effect with respect to
Parent.
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(c) No Audit by a Tax Authority is pending or, to the Knowledge
of Parent, threatened, with respect to any Tax Returns filed by, or Taxes due
from, Parent or any of its Subsidiaries. No issue has been raised by any Tax
Authority in any Audit of Parent or any of its Subsidiaries that, if raised with
respect to any other period not so audited, reasonably could be expected to
result in a material proposed deficiency for any period not so audited. No
material deficiency or adjustment for any Taxes has been proposed, asserted,
assessed or, to the Knowledge of Parent, threatened, against Parent or any of
its Subsidiaries. No claim has ever been made in writing by a Tax Authority in a
jurisdiction where Parent or any of its Subsidiaries does not file Tax Returns
that Parent or any of its Subsidiaries is or may be subject to taxation by that
jurisdiction. There are no Liens for Taxes upon the assets of Parent or any of
its Subsidiaries, except Liens imposed by operation of law for current Taxes not
yet delinquent.
(d) Neither Parent nor any of its Subsidiaries has given any
waiver of statutes of limitations relating to Taxes or executed a power of
attorney with respect to Tax matters that, in either case, will be outstanding
as of the Closing Date.
(e) There are no Tax sharing, Tax indemnity or similar
agreements to which Parent or any of its Subsidiaries is a party or bound by or
pursuant to which Parent or any of its Subsidiaries has any obligation or
liability for Taxes except for agreements among Parent and its Subsidiaries.
(f) Except for the group of which Parent is currently the
parent corporation, Parent has never been a member of an affiliated group of
corporations within the meaning of Section 1504 of the Code or a group of
corporations filing combined or unitary returns.
(g) Parent has not agreed to make nor is it required to make
any adjustment under Section 481(a) of the Code by reason of change in
accounting method or otherwise.
(h) None of Parent or any of its Subsidiaries has any liability
for Taxes of any Person (other than Parent and its Subsidiaries) under Treasury
Regulation Section 1.1502 -6 (or any similar provision of state, local or
foreign Law), as a transferee or successor, by contract or otherwise.
(i) Neither Parent nor any of its Subsidiaries has distributed
stock of another Person, or has had its stock distributed by another Person in a
transaction that was purported or intended to be governed in whole or in part by
Code Sections 355 or 361 within the two-year period preceding the date of this
Agreement.
(j) None of Parent or its Subsidiaries will be required to
include any item of income in, or exclude any item of deduction from, taxable
income for any taxable period (or portion thereof) ending after the Closing Date
as a result of any (i) change in method of accounting for a taxable period
ending on or prior to the Closing Date, (ii) “closing agreement” as described in
Code Section 7121 (or any corresponding or similar provision of state, local, or
foreign income Tax law) executed on or prior to the Closing Date or (iii) an
installment sale or open transaction disposition made on or prior to the Closing
Date.
(k) Neither Parent nor any of its Subsidiaries has
participated, within the meaning of Treasury Regulation Section 1.6011 -4(c) (or
any predecessor of such Treasury Regulation), in (i) any “listed transaction”
within the meaning of Code Section 6011 and the Treasury Regulation thereunder
(or any corresponding or similar provision of state, local, or foreign income
Tax Law) or (ii) any transaction required to be registered with the Internal
Revenue Service under Code Section 6111 as in effect on or prior to December 31, 2013 and
the Treasury Regulation thereunder (or any corresponding or similar provision of
state, local, or foreign income Tax Law).
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(l) Neither Parent nor any of its Subsidiaries is a party to
any agreement, contract, arrangement or plan that has resulted or could result,
separately or in the aggregate, in the payment of (i) any “excess parachute
payment” within the meaning of Code §280G (or any corresponding provision of
state, local or foreign Tax Law) and (ii) any amount that will not be fully
deductible as a result of Code §162(m) (or any corresponding provision of state,
local or foreign Tax Law).
5.11 Litigation. Except as specifically disclosed in
either the Parent SEC Reports or Parent SEDAR Reports filed and publicly
available prior to the Agreement Date or Section 5.11 of the Parent Disclosure
Letter, there is no suit, claim, action, proceeding or investigation pending or,
to Parent’s Knowledge, threatened against or directly affecting Parent, any
Subsidiary of Parent or any of the directors or officers of Parent or any of its
Subsidiaries in their capacity as such, nor is there any reasonable basis
therefor, that, individually or in the aggregate, would be reasonably likely to
have a Material Adverse Effect with respect to Parent if determined adversely to
Parent, a Subsidiary of Parent or any such director or officer. Neither Parent
nor any of its Subsidiaries, nor any officer, director or employee of Parent or
any of its Subsidiaries, has been permanently or temporarily enjoined by any
order, judgment or decree of any court or any other Governmental Authority that
names such Person from engaging in or continuing any conduct or practice in
connection with the business, assets or properties of Parent or such Subsidiary
nor, to the Knowledge of Parent, is Parent, any Subsidiary of Parent or any
officer, director or employee of Parent or any of its Subsidiaries under
investigation by any Governmental Authority. There has not been, and to the
Parent’s Knowledge, there is not pending or contemplated, any investigation by
the SEC involving the Parent or any current or former director or officer of the
Parent.
5.12 Employee Benefit Plans; ERISA.
(a) Section 5.12(a) of the Parent Disclosure Letter contains a
true and complete list of each plan, fund, contract, program, agreement and
arrangement (whether written or not) for the benefit of present or former
employees or directors, including those intended to provide pension, profit
sharing, retirement, supplemental retirement, deferred compensation, equity
incentive, or bonus or other incentive benefits (whether or not tax qualified
and whether or not defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”)); disability, medical, dental,
or other health insurance benefits, life insurance or other death benefit
benefits (whether or not defined in Section 3(1) of ERISA); salary continuation,
unemployment, supplemental unemployment, severance, termination pay,
change-in-control, vacation or holiday benefits (whether or not defined in
Section 3(3) of ERISA) (i) to which Parent or any of its Subsidiaries is a party
or by which it is bound, or (ii) with respect to which Parent or any of its
Subsidiaries has made any payments or contributions or may otherwise have any
liability, whether direct or indirect, (including any such plan or other
arrangement formerly maintained by Parent or any of its Subsidiaries), (iii)
that Parent or any of its Subsidiaries has committed to implement, establish,
adopt or contribute to in the future, (iv) for which Parent or any of its
Subsidiaries is or may be financially liable as a result of Parent’s affiliation
with any company or any company’s shareholders which together with Parent or any
of its Subsidiaries would be deemed a “single employer” within the meaning of
Section 414(b), (c) or (m) of the Code or Section 4001(b)(1) of ERISA (a
“Parent ERISA Affiliate”) (whether or not such affiliation exists at the
date of this Agreement and notwithstanding that the plan is maintained by the
Parent or any of its Subsidiaries for the benefit of its employees or former
employees), (v) for or with respect to which Parent or any of its Subsidiaries
is or may become liable under any common law successor doctrine, express
successor liability provision of Law, labor or employment Law or agreement with a predecessor employer (“Parent Benefit Plan”).
Parent Benefit Plan does not include any arrangement that has been terminated
and completely wound up prior to the date of this Agreement and for which
neither Parent nor any of its affiliates has any present or potential Liability.
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(b) With respect to each Parent Benefit Plan, (i) such plan has
been administered in compliance with its terms and applicable Law in all
material respects, (ii) each Parent Benefit Plan that is intended to be
“qualified” within the meaning of Section 401(a) of the Code has received a
favorable determination letter from the Internal Revenue Service or is
maintained under a prototype or volume submitter plan and with respect to which
the Parent and the Parent ERISA Affiliates are entitled to rely upon a favorable
opinion or advisory letter issued by the Internal Revenue Service, (iii) to the
Knowledge of the Parent, there is no circumstance that will result in the
revocation of any favorable determination letter, opinion letter or advisory
letter issued by the Internal Revenue Service, (iv) neither Parent nor any
Parent ERISA Affiliate has engaged in, and Parent and each Parent ERISA
Affiliate do not have any Knowledge of any Person that has engaged in, any
transaction or acted or failed to act in any manner that would subject Parent or
any Parent ERISA Affiliate to any liability for a breach of fiduciary duty under
ERISA, (v) no disputes are pending or, to the Knowledge of Parent or any Parent
ERISA Affiliate, threatened, other than ordinary claims for benefits, nor is
there any basis for such a proceeding, (vi) neither Parent nor any Parent ERISA
Affiliate has engaged in, and neither Parent nor any Parent ERISA Affiliate has
any Knowledge of any Person that has engaged in, any transaction prohibited by
Section 406 of ERISA or Section 4975 of the Code, except for those which an
exemption applies (vii) all contributions due have been made on a timely basis,
(viii) all required reports, notices and descriptions related to the Parent
Benefit Plan (including, but not limited to, those required by Parent Benefit
Plan provisions, ERISA and the Code) have been distributed to participants or
filed with the appropriate Governmental Authority, (ix) all contributions made
or that will be made under any Parent Benefit Plan meet the requirements for
deductibility under the Code, (x) Parent is not liable (either directly or as a
result of indemnification) for any excise Taxes, penalties, damages or equitable
relief as a result of any violation under ERISA or any other applicable Law,
(xi) no leased employees (as defined in Section 414(n) of the Code) or
independent contractors are eligible for, or participate in, any Parent Benefit
Plan and (xii) no audit or examination by a Governmental Authority is currently
pending (nor has notice been received regarding a potential audit or
examination) and there are no pending submissions to a Governmental Authority.
(c) With respect to all Parent Benefit Plans, to the extent
that the following documents exist, Parent has furnished Target with true and
complete copies of: (i) the most recent determination letter, if any, received
by the Parent or any Parent ERISA Affiliate from the IRS, (ii) all pending
applications for rulings, determinations, opinions, no action letters and the
like filed with any governmental agency (including the Department of Labor and
the Internal Revenue Service), (iii) the Annual Report/Return (Form Series 5500)
with financial statements, if any, and attachments for the most recent plan
year, (iv) Parent Benefit Plan documents, summary plan descriptions, trust
agreements, insurance contracts, individual agreements, service agreements and
all related contracts and documents (including any material employee summaries
and material employee communications), and (v) all Internal Revenue Service or
Department of Labor audit closing letters, audit finding letters, revenue agent
findings and similar documents.
(d) Any Parent Benefit Plan, individual employment, severance
or other compensatory agreement or arrangement with respect to which the Parent
or any Parent ERISA Affiliate has any current or future obligation that is a
“nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of
the Code), complies in form and operation with the requirements under Code Section 409A and the Treasury
Regulations issued thereunder (without regard to the effective date of such
regulations) so as not to result in the imposition of additional Tax or interest
to a service provider.
34
(e) No Parent Benefit Plan is a multiple employer plan (as
defined in Section 413(c) of the Code), a multiemployer plan (as defined in
Section 3(37) of ERISA), a defined benefit pension plan (as defined in Section
3(35) of ERISA) subject to Title IV of ERISA, a plan subject to the minimum
funding standards under Section 302 of ERISA or Section 412 of the Code, a plan
that is intended to be qualified under Section 401(a), a welfare plan that is
self-funded, a plan that owns employer stock or a plan that is funded, in whole
or in part, through a voluntary employees’ beneficiary association exempt from
Tax under Section 501(c)(9) of the Code.
(f) No present or former employees or directors of Parent or
any of its Subsidiaries are covered by any employee agreements or plans that
provide or will provide severance pay, post-termination health or life insurance
benefits (except as required pursuant to Section 4980(B) of the Code) or any
similar benefits.
(g) No condition, agreement or Parent Benefit Plan provision
limits the right of Parent or Merger Sub to amend, cut back or terminate any
Parent Benefit Plan (except to the extent such limitation arises under ERISA).
Each Parent Benefit Plan may be unilaterally amended or terminated in its
entirety without liability except as to (i) benefits accrued thereunder prior to
such amendment or termination or (ii) costs necessary to satisfy any notice
periods described in such Parent Benefit Plan or funding vehicle.
(h) The execution, delivery, and performance by Parent of this
Agreement or any Ancillary Agreement to which Parent is or will be a party and
the consummation of the Transactions will not constitute an event under any
Parent Benefit Plan that will (i) cause any Parent Benefit Plan to increase
benefits payable to any participant or beneficiary, (ii) entitle any current or
former employee or director of Parent or any of its Subsidiaries to severance
pay, unemployment compensation or any other payment, benefit or award, or (iii)
modify or result in any payment (whether as severance pay or otherwise),
acceleration, vesting, or increases in benefits, awards or compensation with
respect to any employee of the Parent or Subsidiary of Parent, except as set
forth in Section 5.12(f) of the Parent Disclosure Letter.
5.13 Environmental Liability. Except as set forth in
Section 5.13 of the Parent Disclosure Letter or either the Parent SEC Reports or
Parent SEDAR Reports filed and publicly available prior to the Agreement Date,
including the September 30, 2014 Parent Balance Sheet:
(a) The businesses of Parent and its Subsidiaries have been and
are operated in compliance in all material respects with all applicable
Environmental Laws.
(b) Neither Parent nor any of its Subsidiaries has caused or
allowed the generation, treatment, manufacture, processing, distribution, use,
storage, discharge, release, disposal, transport or handling of any Hazardous
Substances, except in compliance in all material respects with all Environmental
Laws and in a manner that does not give rise to any Liability under any
Environmental Laws, and, to Parent’s Knowledge, no generation, treatment,
manufacture, processing, distribution, use, storage, discharge, release,
disposal, transport or handling of any Hazardous Substances has otherwise
occurred at any property or facility currently or formerly owned, leased or
operated by Parent or any of its Subsidiaries, including the Parent Real
Property, except in compliance in all material respects with all Environmental
Laws and in a manner that does not give rise to any Liability under any
Environmental Laws.
35
(c) Neither Parent nor any of its Subsidiaries has received any
written notice from any Governmental Authority or third party or, to the
Knowledge of Parent, any other communication alleging or concerning any material
violation by Parent or any of its Subsidiaries of, or responsibility or
liability of Parent or any of its Subsidiaries under, any Environmental Law.
There are no pending, or to the Knowledge of Parent, threatened, claims, suits,
actions, proceedings or investigations with respect to the businesses or
operations of Parent or any of its Subsidiaries alleging or concerning any
material violation of, or responsibility or liability under, any Environmental
Law, nor does Parent have any Knowledge of any fact or condition that could give
rise to such a claim, suit, action, proceeding or investigation.
(d) Parent and its Subsidiaries have obtained and are in
compliance in all material respects with all approvals, permits, licenses,
registrations and similar authorizations from all Governmental Authorities under
all Environmental Laws required for the operation and ownership of the Parent
Real Property, Parent Improvements and the businesses of Parent and its
Subsidiaries as currently conducted, and there are no pending or, to the
Knowledge of Parent, threatened, actions, proceedings or investigations alleging
violations of or seeking to modify, revoke or deny renewal of any of such
approvals, permits, licenses, registrations and authorizations. Parent does not
have Knowledge of any fact or condition that is reasonably likely to give rise
to any action, proceeding or investigation regarding the violation of or seeking
to modify, revoke or deny renewal of any such approvals, permits, licenses,
registrations and authorizations.
(e) Without in any way limiting the generality of the
foregoing, to Parent’s Knowledge, (i) all offsite locations where Parent or any
of its Subsidiaries has transported, released, discharged, stored, disposed or
arranged for the disposal of Hazardous Substances are and have been licensed and
operating in all material respects with Environmental Laws and (ii) no PCBs,
PCB-containing items, asbestos-containing materials, or radioactive materials
are now or have been used or stored at any property owned, leased or operated by
Parent or any of its Subsidiaries, except in compliance in all material respects
with Environmental Laws and in a manner that does not give rise to any Liability
under any Environmental Laws.
(f) No claims have been asserted or, to Parent’s Knowledge,
threatened to be asserted against Parent or its Subsidiaries for any personal
injury (including wrongful death) or property damage (real or personal) arising
out of alleged exposure or otherwise related to Hazardous Substances used,
handled, generated, transported or disposed of by Parent or its Subsidiaries.
(g) No Lien has been attached or filed or is, to the Knowledge
of Parent, threatened against Parent or its Subsidiaries in favor of any Person
for (i) any liability under or violation of any applicable Environmental Law,
(ii) any Release of Hazardous Substances or (iii) any imposition of Liability.
(h) No property currently or formerly owned or operated by
Parent or its Subsidiaries, including the Parent Real Property, is listed on a
List, and neither the Parent nor its Subsidiaries have received any notice that
any such property is being considered for listing on a List.
(i) All environmental audits, site assessments, risk
assessments, and other environmental reports and studies, including summaries of
any material test results or analytic data, conducted by, at the expense of, or
on behalf of Parent or its Subsidiaries or that are otherwise in the possession
of Parent or its Subsidiaries have been provided to Target.
36
5.14 Compliance with Applicable Laws. Parent and each of
its Subsidiaries hold all approvals, licenses, permits, registrations,
exemptions and similar authorizations from Governmental Authorities and other
Persons necessary for the lawful conduct of their respective businesses as now
conducted (the “Parent Permits”). Except as set forth in either the
Parent SEC Reports or Parent SEDAR Reports, or in Section 5.14 of the Parent
Disclosure Letter, Parent and each of its Subsidiaries have been and are in
compliance with the terms of the Parent Permits and all applicable Laws in all
material respects, and neither Parent nor any of its Subsidiaries has received
any notice from any Person that the business of Parent or any of its
Subsidiaries has been or is being conducted in violation of any applicable Law
or the terms of any Parent Permit in any material respect. Neither Parent nor
any Subsidiary has received any notice that any Parent Permit will be terminated
or modified or cannot be renewed in the ordinary course of business, and Parent
has no Knowledge of any reasonable basis for any such termination, modification
or non-renewal.
5.15 Insurance. Section 5.15 of the Parent Disclosure
Letter sets forth a complete and accurate list of each insurance policy under
which Parent or its Subsidiaries has been an insured, a named insured or
otherwise the principal beneficiary of coverage at any time during the past
three years. Parent has made available or will make available prior to the
Closing Date to Parent a true and complete copy of each such policy. With
respect to each such policy, none of Parent, its Subsidiaries or, to Parent’s
Knowledge, any other party to the policy is in material breach or default
thereunder (including with respect to the payment of premiums or the giving of
notices), and Parent does not know of any occurrence or any event which (with
notice or the lapse of time or both) would constitute such a breach or default
or permit termination, modification or acceleration under the policy. Neither
Parent nor any Subsidiary has received any notice that any of its policies
cannot be renewed in the ordinary course of business, and has no Knowledge of
any reasonable basis for any such non-renewal. All appropriate insurers under
such insurance policies have been notified of all potentially insurable losses
and pending litigation and legal matters, and no such insurer has informed
either the Parent or any of its Subsidiaries of any denial of coverage or
reservation of rights thereto. Section 5.15 of the Parent Disclosure Letter
describes any self-insurance arrangements affecting Parent or its Subsidiaries.
5.16 Properties; Mining Claims.
(a) Section 5.16 of the Parent Disclosure Letter sets out all
of the real property owned, held, leased or controlled, whether legally or
beneficially for the benefit of Parent or the Parent Material Subsidiaries, as
applicable, including all material (i) fee surface and mineral property
(“Parent Fee Property”), (ii) unpatented mining claims (“Parent Mining
Claims”), and (iii) real property leases, mining leases, surface use
agreements, rights-of-way, easements, or other contracts with respect to real
property (“Parent Property Contracts”). The Parent Fee Property, Parent
Mining Claims and Parent Property Contracts will be collectively referred to
hereinafter as the “Parent Real Property.”
(b) Except as provided in Section 5.16 of the Parent Disclosure
Letter or either the Parent SEC Reports or Parent SEDAR Reports, Parent or its
Subsidiaries own good and marketable title to an undivided one hundred percent
(100%) record and beneficial interest in and to the Parent Real Property, in
each case free and clear of any Liens, other than Permitted Liens. Neither
Parent nor its Subsidiaries have leased, subleased, optioned, mortgaged, or
entered into other contract or agreement transferring any interest in the Parent
Real Property, Property Contracts, Parent Water Rights, Parent Improvements, or
Parent Listed Personal Property to any Person, and there are no actions, suits,
administrative or other proceedings pending, or, to Parent’s Knowledge,
threatened against any of the Parent Real Property. All ad valorem property and
other Taxes assessed against the Parent Real Property have been timely and
properly paid.
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(c) Except as set forth in Section 5.16 of the Parent
Disclosure Letter, (i) all annual labor and assessment work, rental fees or
maintenance fees, license, royalty, and tax fees, and filings with any
Governmental Authority required to hold the Mining Claims and the Property
Contracts have been properly and timely performed, paid or filed, in all
material respects, and all affidavits of annual labor and assessment work and
other filings required to maintain the Mining Claims in good standing have been
properly and timely recorded and filed with the appropriate Governmental
Authorities; (ii) the Mining Claims and Property Contracts are free and clear of
any claims or Liens except for Permitted Liens, and there are no material
conflicting claims by a third party with respect to the lands covered by the
Mining Claims or Property Contracts; and (iii) there are no royalties or similar
types of obligations payable or required to be paid to any Person having an
interest in the Mining Claims or Property Contracts.
(d) All Property Contracts are in good standing, valid and
effective in accordance with their respective terms, Parent and its Subsidiaries
have performed all of their respective material obligations thereunder, and
there is not, under any of such Property Contracts any existing default or event
of default (or event which with notice or lapse or time, or both would
constitute a default; or would constitute a basis of force majeure or other
claim of excusable delay or non-performance) of Parent or its Subsidiaries or
the other party to the Property Contract. To Parent’s Knowledge, the party
granting Parent or its Subsidiaries rights to the properties covered by those
Property Contracts owns good and marketable title to those properties, free and
clear of all Liens, other than Permitted Liens.
(e) Section 5.16(e) of the Parent Disclosure Letter sets out
water rights owned, held, leased or controlled, whether legally or beneficially
for the benefit of Parent or its Subsidiaries, as applicable, including all
surface and underground water and water rights, including but not limited to
certificates, licenses, and permits, together with all applications for water
rights or applications or permits for the use, transfer or change of water
rights, ditch and ditch rights, well and well rights, reservoir and reservoir
rights, stock or interests in irrigation or ditch companies appurtenant to the
Parent Real Property and all other rights to water for use at or in connection
with the Parent Real Property or the mining of minerals from the Parent Real
Property (“Parent Water Rights”). Except as set forth in Section
5.16(e) of the Parent Disclosure Letter, (i) Parent or its Subsidiaries own good
and marketable title to an undivided one hundred percent (100%) record and
beneficial interest in and to the Parent Water Rights, free and clear of all
Liens, except for Permitted Liens, and (ii) the Parent Water Rights are
sufficient to conduct the operations and activities of the Parent and its
Subsidiaries as they are currently being conducted and are contemplated to be
conducted.
(f) Except as set forth in Section 5.16(f) of the Parent
Disclosure Letter, (i) Parent owns good and marketable title to an undivided one
hundred percent (100%) interest in and to all improvements (“Parent
Improvements”) to the Parent Real Property and personal property (“Parent
Listed Personal Property”) free and clear of all Liens except for Permitted
Liens, and (ii) all Parent Improvements and Parent Listed Personal Property are
suitable for the purposes for which they are currently used by Parent.
(g) Except as set forth in Section 5.16(g) of the Parent
Disclosure Letter, Parent or its Subsidiaries owns or leases all of the assets,
tangible and intangible, of any nature whatsoever, necessary to operate its
business and their business as currently conducted.
(h) Except as disclosed in Section 5.16(h) of the Parent
Disclosure Letter, Parent or its Subsidiaries have now and, immediately
following the consummation of the transactions contemplated by this Agreement,
will have the right to occupy and use each of their Material Real Properties and Parent Improvements in the same manner currently
occupied and used by Parent or its Subsidiaries to conduct their business as
presently conducted.
38
(i) Parent or its Subsidiaries is not obligated under any
forward sale or advanced sale contract with respect to minerals produced or
producible from the Parent Real Property under which sales proceeds are paid by
the purchaser in advance of delivery.
(j) Parent has made available to Target all information, data,
geological and geophysical test results, maps and surveys in the possession of
Parent or its Subsidiaries that might reasonably be expected to be material to a
prospective purchaser of the Parent or that have been requested by Target
relating to Parent or its Subsidiaries and their properties and business, and
Parent and its Subsidiaries have not withheld from Parent Parties any such
information, data, test results, maps or surveys. Parent represents and warrants
that all such information, data, test results, maps and surveys were prepared or
procured by Parent or its Subsidiaries in the ordinary course of business.
(k) Each of the technical reports prepared by or on behalf of
Parent and filed by Parent on SEDAR (the “Parent 43-101 Technical
Reports”) was prepared in good faith and in the ordinary course of business
and in accordance with the requirements of NI 43-101. To Parent’s Knowledge, the
estimates of mineral reserves and resources reflected in the Target 43-101
Technical Reports were estimated in good faith using methods and based on
assumptions considered reasonable at the time of estimation on the basis of
drill and test data generated and compiled in accordance with prudent mining and
engineering practice. The mine plans of Parent listed in Section 5.16 of the
Parent Disclosure Letter, including the financial forecasts and budgets included
therein and the studies related thereto (i) have been prepared by management of
Parent in good faith and in the ordinary course of business, and (ii) are based
on assumptions, including assumptions relating to mining operations, capital and
operating costs and production rates, that are considered by management to be
reasonable, as at the date the mine plans were prepared, for the purpose of
planning the future mining operations of Parent, provided that Target
acknowledges that Parent provides no assurance as to the future uranium prices
used in such mine plans, other than where the uranium prices reflect contractual
prices for uranium to be delivered under existing supply agreements.
5.17 Material Contracts. Parent has provided or will
make available to Target prior to the Closing Date true and complete copies of
all Material Contracts unless otherwise available in either Parent SEC Reports
or Parent SEDAR Reports, and has referenced each of such Material Contracts in
Section 5.17 of the Parent Disclosure Letter. Except as set forth in Section
5.17 of the Parent Disclosure Letter, each Material Contract is valid and
binding and in full force and effect and Parent and each of its Subsidiaries
have performed all obligations required to be performed by them under each
Material Contract in all material respects. To Parent’s Knowledge, there does
not exist, nor has Parent or any of its Subsidiaries received written notice of,
any material breach of or violation or default under, any of the terms,
conditions or provisions of any Material Contract and neither Parent nor any of
its Subsidiaries has received written notice of the desire of the other party or
parties to any such contract to exercise any rights such party has to cancel,
terminate or repudiate such contract or exercise remedies thereunder that would
be reasonably likely to have a Material Adverse Effect with respect to Parent.
Subject to the Enforceability Exception, each Material Contract is enforceable
by Parent or its applicable Subsidiary in accordance with its terms.
5.18 Required Shareholder Vote. The affirmative vote of
the holders, as of the record date, of a majority of the Parent Common Shares
voted in person or represented by proxy and entitled to vote thereon at a duly
convened and held shareholder meeting at which a quorum is present (the
“Parent Shareholders’ Approval”) is the only vote required of
the holders of any class or series of Parent’s common shares that shall be
necessary to adopt this Agreement and to consummate the Transactions.
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5.19 Operations of Merger Sub. Merger Sub is an indirect
wholly owned subsidiary of Parent, and was formed solely for the purpose of
engaging in the transactions contemplated by this Agreement, has engaged in no
other business activities and has conducted its operations only as contemplated
by this Agreement.
5.20 Form F-4 and Proxy Statement/Prospectus. None of
the information to be supplied by Parent or Merger Sub expressly for inclusion
in (a) the Form F-4 or (b) the Proxy Statement/Prospectus, in each case, and any
amendments or supplements thereto, will, at the respective times such documents
are filed, and, in the case of the Proxy Statement/Prospectus, at the time the
Proxy Statement/Prospectus or any amendment or supplement thereto is first
mailed to the Target shareholders, at the time of the Target Meeting and at the
Effective Time, and, in the case of the Form F-4, when it becomes effective
under the Securities Act, contain any untrue statement of a material fact or
omit to state any material fact required to be made therein or necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading.
5.21 Fairness Opinion; Board Approval.
(a) Parent’s board of directors has received a written opinion
dated January 2, 2015 from Roth Capital Partners, LLC (“Roth”) to the
effect that, as of the date of such opinion, the Exchange Ratio is fair, from a
financial point of view, to the holders of the Parent Common Shares. A true and
complete copy of such opinion has been provided to Target.
(b) Parent’s board of directors, at a meeting duly called and
held, unanimously (i) determined that this Agreement and the Transactions are
advisable and are fair to, and in the best interests of, the shareholders of
Parent, (ii) approved this Agreement and the Transactions and (iii) recommended
approval and adoption of this Agreement and the Merger and the Transactions by
the shareholders of Parent.
5.22 Controls and Procedures. Except as set forth in
either the Parent SEC Reports or Parent SEDAR Reports, Parent has established
and maintains “disclosure controls and procedures” that are reasonably designed
to ensure that all material information (both financial and non-financial)
required to be disclosed by Parent in the reports that it is required to file
under applicable Laws (including applicable securities Laws) is recorded,
processed, summarized and reported within the time periods specified in the
applicable Laws and that all such information is accumulated and communicated to
Parent’s management as appropriate to allow timely decisions regarding required
disclosure and to make the certifications of the chief executive officer and
chief financial officer of Parent required under applicable Laws (including
applicable securities Laws) with respect to such reports. Except as set forth in
Section 5.22 of the Parent Disclosure Letter, or either the Parent SEC Reports
or Parent SEDAR Reports, neither Parent nor its independent auditors have
identified any “significant deficiencies” or “material weaknesses” in Parent’s
or any of its Subsidiaries’ internal controls as contemplated under applicable
Laws (including applicable securities Laws and Section 404 of the Sarbanes-Oxley
Act). Parent has made or will make available to Target prior to the Closing Date
true and complete copies of any disclosures made by management to Parent’s
auditors and audit committee regarding such significant deficiencies or material
weaknesses. Parent has no Knowledge of any material complaint, allegation,
assertion or claim, whether written or oral, regarding the accounting or
auditing practices, procedures, methodologies or methods of Parent or any of its
Subsidiaries or their respective internal accounting controls, including any
material complaint, allegation, assertion or claim that Parent or any of its
Subsidiaries has engaged in questionable accounting or auditing practices. No
attorney representing Parent or any of its Subsidiaries, whether or not employed by Parent or any of its Subsidiaries, has reported evidence of
a violation of securities laws, breach of fiduciary duty or similar violation by
Parent or any of its officers, directors, employees or agents to the board of
directors of Parent or any committee thereof or to any director or officer of
Parent. Parent has not granted any waivers with respect to its policies
regarding ethical conduct.
40
5.23 Parent Common Shares. The Parent Common Shares
issuable upon conversion of the Target Common Shares upon the completion of the
Merger will, when issued and delivered in accordance with this Agreement, be
duly authorized, validly issued, fully paid and nonassessable.
5.24 Substituted Options and Assumed Warrants. The
Substituted Options and Assumed Warrants will, when issued and delivered in
accordance with this Agreement, be duly authorized, validly issued and binding
obligations of Parent, enforceable against Parent in accordance with their
terms, and any Parent Common Shares issued upon exercise thereof in accordance
with the terms of the relevant option plan, option agreement or warrant
indenture will, when issued, be duly authorized, validly issued, fully paid and
nonassessable.
5.25 Intellectual Property. Except as set forth in
Section 5.25 of the Parent Disclosure Letter, the Parent owns, licenses or
otherwise possesses title to or the right to use all patents, trademarks,
service marks, trade names, registered copyrights and applications therefor
owned by or registered in the name of Parent, together with all other material
intellectual property assets, including computer software, owned or licensed by
Parent, and, in either case, used by the Parent in connection with the operation
and conduct of its business (collectively, the “Parent Intellectual
Property”). The Parent Intellectual Property set forth in Section 5.25 of
the Parent Disclosure Letter constitutes all material intellectual property used
by the Parent in connection with the conduct and operation of its business.
Except as set forth in Section 5.25 of the Parent Disclosure Letter, Parent will
have the right to use the Parent Intellectual Property following the Closing. To
the Knowledge of Parent, it is not infringing any valid patent right, trademark,
service mark, trade name, copyright or other intellectual property right of any
third party in connection with its use of the Parent Intellectual Property that
would be reasonably likely to have a Material Adverse Effect with respect to
Parent.
5.26 Affiliate Transactions. In addition to those
identified in either the Parent SEC Reports or Parent SEDAR Reports, Section
5.26 of the Parent Disclosure Letter contains a complete and accurate list of
all agreements, contracts, commitments or transactions (other than Parent
Benefit Plans), whether or not entered into in the ordinary course of business,
to or by which Parent or any of its Subsidiaries, on the one hand, and any of
their officers, directors or affiliates (or any affiliates of such officers or
directors), on the other hand, are or have been a party or are otherwise bound
or affected and that (a) are currently pending or proposed, in effect or have
been in effect at any time since September 30, 2014 or (b) involve continuing
Liabilities and obligations to or of Parent or any of its Subsidiaries.
5.27 Brokers. No broker, finder or investment banker
(other than Cantor Fitzgerald (“Cantor”) and Roth), the fees and expenses
of which will be paid by Parent at Closing) is entitled to any brokerage,
finder’s fee or other fee or commission payable by Parent or any of its
Subsidiaries in connection with the Transactions based upon arrangements made by
and on behalf of Parent or any of its Subsidiaries. Parent has heretofore
furnished to Target a true and complete copy of all agreements between (i)
Parent and Cantor and (ii) Parent and Roth, pursuant to which such firm would be
entitled to any payment relating to the Transactions.
5.28 Takeover Matters. The Parent does not have any
applicable anti-takeover provision in its articles of incorporation or bylaws.
Parent and Parent’s board of directors have each taken all actions necessary to
be taken such that the Parent Rights Plan is not, or at the Effective Time will
not be, applicable to Target, Merger Sub, the Voting Agreements, this Agreement
or the Transactions.
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5.29 Related Party Transactions. Except as set forth in
the Parent SEDAR Reports, the Parent has not, and, to the knowledge of the
Parent, has not been deemed to have for purposes of any applicable Law, engaged
in or been party to any transaction with any of its officers, directors,
employees or direct or indirect shareholders or, to the knowledge of the Parent,
any member of their immediate families (i) acquired or have the use of property
for proceeds greater than the fair market value thereof, (ii) received services
or have the use of property for consideration other than the fair market value
thereof, or (iii) received interest or any other amount other than at a fair
market value rate from any person with whom it does not deal at arm’s length
within the meaning of applicable taxation acts. Except as set forth in the
Parent SEDAR Reports, the Parent has not, and, to the knowledge of the Parent,
has not been deemed to have for purposes of any applicable Law, engaged in or
been party to any transaction with any of its officers, directors, employees or
direct or indirect shareholders or, to the knowledge of the Parent, any member
of their immediate families (i) disposed of the property for proceeds less than
the fair market value thereof, (ii) performed services for consideration other
than the fair market value thereof or (iii) paid interest or any other amount
other than at a fair market value rate to any person with whom it does not deal
at arm’s length within the meaning of applicable acts. Except as set forth in
the Parent SEDAR Reports and to the knowledge of the Parent, none of the
officers, directors and employees of the Parent, no shareholder of the Parent
and no immediate family member of an officer, director, employee or such
beneficial owner, has a direct ownership interest of more than ten percent (10%)
of the equity ownership of any firm or corporation that competes with, or does
business with, or has any contractual arrangement with, the Parent. Since the
date of 2013 Parent Balance Sheet, no event has occurred that would be required
to be reported as a “certain relationship of related transaction” pursuant to
Item 404 of Regulation S-K of the SEC.
5.30 Compliance with the U.S. Foreign Corrupt Practices Act
and Other Applicable Anti-Corruption Laws.
(a) Parent and its Subsidiaries have complied with the U.S.
Foreign Corrupt Practices Act of 1977 and other applicable anti-corruption
laws.
(b) Neither Parent nor any of its Subsidiaries nor any
director, officer, agent, employee or representative of Parent or any of its
Subsidiaries at the direction of or on behalf of Parent or any of its
Subsidiaries corruptly or otherwise illegally offered or gave anything of value
to: (i) any official, employee or representative of a Governmental Authority,
any political party or official thereof, or any candidate for political office;
or (ii) any other Person, in any such case while knowing, or having reason to
know, that all or a portion of such money or thing of value may be offered,
given or promised, directly or indirectly, to any official, employee or
representative of a Governmental Authority, any political party or official
thereof, or candidate for political office for the purpose of the following: (x)
influencing any action or decision of such Person, in his or her official
capacity, including a decision to fail to perform his or her official function;
(y) inducing such Person to use his or her influence with any Governmental
Authority to affect or influence any act or decision of such Governmental
Authority to assist in obtaining or retaining business or to secure an improper
business advantage; or (z) where such payment would constitute a bribe, kickback
or illegal or improper payment to assist Parent or any of its Subsidiaries in
obtaining or retaining business for, or with, or directing business to, any
Person or in securing any improper advantage.
(c) There have been no false or fictitious entries made in the
books or records of Parent or any of its Subsidiaries relating to any illegal
payment or secret or unrecorded fund and neither Parent nor any of its
Subsidiaries has established or maintained a secret or unrecorded fund.
42
5.31 Books and Records. To the Knowledge of the Parent
and its Subsidiaries, the minute books and other similar records of the Parent
and its Subsidiaries for the most recent three full fiscal years and any interim
period contain a true and complete record, in all material respects, of all
actions taken at all meetings and by all written consents in lieu of meetings of
the stockholders, the boards of directors (and other similar governing bodies)
and committees of the boards of directors (and other similar governing bodies)
of the Parent and its Subsidiaries.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
6.1 Conduct of Business by Target Pending the Merger.
From the Agreement Date until the earlier of the Effective Time and the date, if
any, on which this Agreement is terminated pursuant to Article X, except
as set forth in Section 6.1 of the Target Disclosure Letter, as otherwise
specifically contemplated by this Agreement, or as required by applicable Law,
by a Governmental Authority of competent jurisdiction or by the rules or
requirements of the TSX, Target agrees that it shall conduct its business in all
material respects in the ordinary course consistent with past practice, shall
use its commercially reasonable efforts to preserve intact its business
organizations and goodwill, including, keeping available the services of its
officers, employees and consultants and maintaining reasonably satisfactory
relationships with vendors, customers and others having business relationships
with it, subject to the terms of this Agreement, and, by way of amplification
and not limitation, shall not (without the prior written consent of Parent,
which consent shall not be unreasonably withheld):
(a) amend or propose to amend its articles of incorporation or
bylaws or other organizational documents;
(b) (i) declare, set aside or pay any dividend or other
distribution with respect to any shares of its capital stock, (ii) repurchase,
redeem or otherwise acquire any outstanding shares of its capital stock or other
securities, (iii) split, combine or reclassify any shares of its capital stock
or (iv) issue any other securities in respect of, in lieu of or in substitution
for shares of Target’s capital stock, except for issuances of Target Common
Shares upon the exercise of Target Stock Options or Target Warrants, in each
case, in accordance with their terms at the time of exercise;
(c) issue, sell, pledge, dispose of or encumber any securities
(whether through the issuance or granting of options, warrants, rights or
otherwise, other than upon the exercise of Target Stock Options outstanding on
the Agreement Date and disclosed in the Target Disclosure Letter), or enter into
any amendment of any term of any outstanding security;
(d) (i) incur or assume any Indebtedness except Indebtedness
incurred in the ordinary course of business and consistent with past practice
and in no event exceeding $1,500,000 in the aggregate or as otherwise set out in
the document titled “5-Year URZ Operating Summary” provided by Target to Parent
(the “Target Budget”), (ii) modify the terms of any Indebtedness, (iii) assume,
guarantee, endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other Person, except in
the ordinary course of business and consistent with past practice and in no
event exceeding $200,000 in the aggregate or as otherwise set out in the Target
Budget, (iv) make any loans, advances or capital contributions to, or
investments in, any other Person (other than short-term investments of cash in
the ordinary course of business);
43
(e) subject any assets to, incur, create or assume, any Lien
other than a Permitted Lien or any Liability as a guarantor or surety with
respect to the obligations of any Person other than in the ordinary course of
business consistent with past practice;
(f) (i) increase the compensation payable or to become payable
or the benefits provided to its directors, officers or employees, except for
increases in the ordinary course of business in salaries or wages of employees
of Target who are not directors or officers of Target, (ii) adopt, amend (other
than amendments that reduce the amounts payable by Target, or amendments
required by Law or otherwise to comply with ERISA, the Code or other applicable
Law) or assume an obligation to contribute to, any employee benefit plan or
arrangement of any type or collective bargaining agreement or enter into any
employment, severance or similar contract with any Person or amend any such
existing contracts to increase or accelerate the payment or provision of any
amounts payable or benefits provided thereunder, (iii) engage in any transaction
in connection with which Target could be subject (directly or indirectly) to
either a civil penalty assessed pursuant to subsections (c), (i) or (l) of
Section 502 of ERISA or a Tax imposed pursuant to Chapter 43 of Subtitle D of
the Code, (iv) terminate any of the Target Benefit Plans, or take any other
action with respect to a Target Benefit Plan that could result in Liability to
any Person, (v) take any action that could adversely affect a Target Benefit
Plan’s compliance with the applicable requirements of ERISA, (vi) fail to make
full payment when due of all amounts which, under the provisions of any Target
Benefit Plans, any agreement relating thereto or applicable Law, such party is
required to pay as contributions thereto, (vii) fail to file, on a timely basis,
all reports and forms required by federal regulations with respect to any Target
Benefit Plans or (viii) adopt or amend, or accelerate the payment or vesting of
benefits under, any Target Benefit Plan;
(g) acquire, by merging or consolidating with, or by purchasing
an equity interest in or the assets of, or in any other manner, any business or
Person, exceeding $1,000,000;
(h) sell, lease, license or otherwise surrender, relinquish or
dispose of any assets with an aggregate fair market value exceeding $1,000,000;
(i) transfer, sell, pledge, encumber or dispose of any capital
stock or other equity interest in any Subsidiary, other than in connection with
6.1(h);
(j) incur or commit to any capital expenditures, or become
bound or obligated to participate in any operation, or consent to participate in
any operation, other than in the ordinary course of business, as contemplated in
current mine plans or as otherwise previously disclosed to Parent;
(k) make any change to any material Tax method of accounting,
make or change any material Tax election, authorize any indemnities for Taxes,
extend any period for assessment of any Tax, file any request for ruling or
determination, amend any material Tax Return (including by way of a claim for
refund) or settle or compromise any material Tax liability, except where such
action would not have a material effect on the Tax position of Target;
(l) (i) except as set forth in clause (ii), pay, discharge or
satisfy any material account payable or other material Liability beyond or in
advance of its due date or the date when such account payable or Liability would
have been paid in the ordinary course of business and consistent with past
practice or (ii) compromise, settle, grant any waiver or release relating to any
action, suit or proceeding, other than settlements or compromises where the
amount paid or to be paid does not exceed $1,000,000 in the aggregate for all
claims;
44
(m) make any change in any method of accounting or accounting
practice or procedure except for any such change required by GAAP;
(n) enter into any agreement, understanding or commitment that
materially restrains, limits or impedes its ability, or would materially limit
the ability of the Surviving Entity or any affiliate of the Surviving Entity
after the Effective Time, to compete in or conduct any line of business or
compete with any Person or in any geographic area or during any period of time,
provided that nothing contained herein shall restrict Target from entering into
confidentiality agreements and property acquisition agreements which contain
“area of interest” restrictions typical in the mining industry in connection
with transactions permitted under Section 6.1(g);
(o) enter into any joint venture, partnership or other similar
arrangement or materially amend or modify the terms of (or waive any material
rights under) any existing joint venture, partnership or other similar
arrangement;
(p) enter into any agreement or transaction that would be
required to be disclosed in the Target Disclosure Letter pursuant to Section
4.21 regarding affiliate transactions if such agreement or transaction had
been entered into prior to the Agreement Date;
(q) grant, or change, any severance or termination pay, other
than with respect to employment agreements entered into with new employees in
the ordinary course of business consistent with past practice;
(r) engage in any transaction with, or enter into any
agreement, arrangement, or understanding with, directly or indirectly, any of
its Affiliates, including any transactions, agreements, arrangements or
understandings with any Affiliate or other Person covered under Item 404 of
Regulation S-K under the Securities Act, that would be required to be disclosed
under Item 404;
(s) effectuate a “plant closing” or “mass layoff,” as those
terms are defined in the Worker Adjustment and Retraining Notification Act of
1988 (the “WARN Act”), affecting in whole or in part any site of
employment, facility, operating unit or employee of Target;
(t) adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or
reorganization;
(u) (i) enter into, amend, modify, or terminate, or make any
commitment in respect of, any contract or agreement that is material to the
business, properties, assets, financial condition or results of operations of
Target, including, without limitation, any Material Contract, except in the
ordinary course of business consistent with past practice, or (ii) enter into
any contract or agreement that limits or otherwise restrains Target from
competing in or conducting any line of business or engaging in business in any
significant geographic area;
(v) cause or allow any material insurance policies (or
substantial equivalents thereof) to lapse or terminate;
(w) pay, discharge, settle or satisfy any lawsuit or threat of
any lawsuit or proceeding or other investigation against Target or relating to
its business, properties or assets, other than (i) in the ordinary course of
business for amounts not in excess of $500,000 in any case, and not to exceed
$1,000,000 in the aggregate, (ii) pursuant to existing contractual obligations,
or (iii) worker’s compensation claims in the ordinary course of business;
45
(x) except as may be required by applicable Law, settle any
material audit with respect to Taxes or file any amended Tax return that would
materially alter the Tax obligation of Target or its Subsidiaries;
(y) take any action that would result in the breach of any
representation and warranty of Target hereunder (except for representations and
warranties made as of a specific date) such that Parent would have the right to
terminate this Agreement;
(z) enter into or make any loans to any of its officers,
directors or employees or make any change in its borrowing or lending
arrangements for or on behalf of any of such Persons; or
(aa) agree to commit to
any of the foregoing.
6.2 Conduct of Business by Parent Pending the Merger.
From the Agreement Date until the earlier of the Effective Time and the date, if
any, on which this Agreement is terminated pursuant to Article X, except
as set forth in Section 6.2 of the Parent Disclosure Letter, as otherwise
specifically contemplated by this Agreement, or as required by applicable Law,
by a Governmental Authority of competent jurisdiction or by the rules or
requirements of the TSX, Parent agrees that it shall conduct its business and
the business of its Subsidiaries in all material respects in the ordinary course
consistent with past practice, shall use its commercially reasonable efforts to
preserve intact its business organizations and goodwill, including, keeping
available the services of its officers, employees and consultants and
maintaining reasonably satisfactory relationships with vendors, customers and
others having business relationships with it, subject to the terms of this
Agreement, and, by way of amplification and not limitation, shall not, and shall
cause its Subsidiaries not to (without the prior written consent of Target,
which consent shall not be unreasonably withheld):
(a) amend or propose to amend its articles of incorporation or
bylaws or other organizational documents;
(b) (i) declare, set aside or pay any dividend or other
distribution with respect to any shares of its capital stock, (ii) repurchase,
redeem or otherwise acquire any outstanding shares of its capital stock or other
securities or (iii) split, combine or reclassify any shares of its capital
stock;
(c) issue, sell, pledge, dispose of or encumber any securities
(whether through the issuance or granting of options, warrants, rights or
otherwise, other than in the ordinary course of business, upon the exercise of
Parent Stock Options outstanding on the Agreement Date and disclosed in the
Parent Disclosure Letter), or enter into any amendment of any term of any
outstanding security, or as otherwise set out in Section 6.2 of the Parent
Disclosure Letter;
wholly owned Subsidiaries of Parent, or by such Subsidiaries to
Parent and other than short-term investments of cash in the ordinary course of
business);
46
(e) subject any assets to, incur, create or assume, any Lien
other than a Permitted Lien or any Liability as a guarantor or surety with
respect to the obligations of any Person other than in the ordinary course of
business consistent with past practice;
(f) (i) engage in any transaction in connection with which
Parent or any of its Subsidiaries could be subject (directly or indirectly) to
either a civil penalty assessed pursuant to subsections (c), (i) or (l) of
Section 502 of ERISA or a Tax imposed pursuant to Chapter 43 of Subtitle D of
the Code, (ii) terminate any of the Parent Benefit Plan that could result in
Liability to any Person, (iii) take any action that could adversely affect a
Parent Benefit Plan’s compliance with the applicable requirements of ERISA, (iv)
fail to make full payment when due of all amounts which, under the provisions of
any Parent Benefit Plans, any agreement relating thereto or applicable Law, such
party is required to pay as contributions thereto, or (v) fail to file, on a
timely basis, all reports and forms required by federal regulations with respect
to any Parent Benefit Plans or (vii) adopt or amend, or accelerate the payment
or vesting of benefits under, any Target Benefit Plan;
(g) acquire, by merging or consolidating with, or by purchasing
an equity interest in or the assets of, or in any other manner, any business or
Person, exceeding $1,000,000;
(h) sell, lease, license or otherwise surrender, relinquish or
dispose of any assets with an aggregate fair market value exceeding
$1,000,000;
(i) transfer, sell, pledge, encumber or dispose of any capital
stock or other equity interest in any Subsidiary other than in connection with
Section 6.2(h);
(j) incur or commit to any capital expenditures, or become
bound or obligated to participate in any operation, or consent to participate in
any operation, other than in the ordinary course or as contemplated in current
mine plans or as otherwise previously disclosed to Target;
(k) make any change to any material Tax method of accounting,
make or change any material Tax election, authorize any indemnities for Taxes,
extend any period for assessment of any Tax, file any request for ruling or
determination, amend any material Tax Return (including by way of a claim for
refund) or settle or compromise any material Tax liability, except where such
action would not have a material effect on the Tax position of Parent and its
Subsidiaries taken as a whole;
(l) (i) except as set forth in clause (ii), pay, discharge or
satisfy any material account payable or other material Liability beyond or in
advance of its due date or the date when such account payable or Liability would
have been paid in the ordinary course of business and consistent with past
practice or (ii) compromise, settle, grant any waiver or release relating to any
action, suit or proceeding, other than settlements or compromises where the
amount paid or to be paid does not exceed $1,000,000 in the aggregate for all
claims;
(m) enter into any agreement, understanding or commitment that
materially restrains, limits or impedes its ability, or would materially limit
the ability of the Surviving Entity or any affiliate of the Surviving Entity
after the Effective Time, to compete in or conduct any line of business or
compete with any Person or in any geographic area or during any period of time,
provided that nothing contained herein shall restrict Parent from entering into
confidentiality agreements and property acquisition agreements which contain
“area of interest” restrictions typical in the mining industry in connection
with transactions permitted under Section 6.2(g);
47
(n) enter into any joint venture, partnership or other similar
arrangement or materially amend or modify the terms of (or waive any material
rights under) any existing joint venture, partnership or other similar
arrangement in circumstances where the sum of (i) the assets of Parent involved,
and (ii) the amount of the obligations and liabilities assumed or agreed to by
Parent, is in excess of $5,000,000;
(o) make any change in any method of accounting or accounting
practice or procedure except for any such change required by IFRS;
(p) enter into any agreement or transaction that would be
required to be disclosed in the Parent Disclosure Letter pursuant to Section
5.26 regarding affiliate transactions if such agreement or transaction had
been entered into prior to the Agreement Date;
(q) engage in any transaction with, or enter into any
agreement, arrangement, or understanding with, directly or indirectly, any of
its Affiliates, including any transactions, agreements, arrangements or
understandings with any Affiliate or other Person covered under Item 404 of
Regulation S-K under the Securities Act, that would be required to be disclosed
under Item 404;
(r) effectuate a “plant closing” or “mass layoff,” as those
terms are defined in the WARN Act, affecting in whole or in part any site of
employment, facility, operating unit or employee of Parent;
(s) adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or
reorganization;
(t) (i) enter into, amend, modify, or terminate, or make any
commitment in respect of, any contract or agreement that is material to the
business, properties, assets, financial condition or results of operations of
Parent, including, without limitation, any Material Contract, except in the
ordinary course of business consistent with past practice and provided that, for
the purposes of this subparagraph (i), a commitment will not be considered
material unless the amount of the obligations or liabilities assumed or agreed
to by Parent under such commitment are in excess of $5,000,000, or (ii) enter
into any contract or agreement that limits or otherwise restrains Parent from
competing in or conducting any line of business or engaging in business in any
significant geographic area;
(u) cause or allow any material insurance policies (or
substantial equivalents thereof) to lapse or terminate;
(v) pay, discharge, settle or satisfy any lawsuit or threat of
any lawsuit or proceeding or other investigation against Parent or relating to
its business, properties or assets, other than (i) in the ordinary course of
business for amounts not in excess of $500,000 in any case, and not to exceed
$1,000,000 in the aggregate, (ii) pursuant to existing contractual obligations,
or (iii) worker’s compensation claims in the ordinary course of business;
(w) except as may be required by applicable Law, settle any
material audit with respect to Taxes or file any amended Tax return that would
materially alter the Tax obligation of Parent or its Subsidiaries;
48
(x) take any action that would result in the breach of any
representation and warranty of Parent hereunder (except for representations and
warranties made as of a specific date) such that Target would have the right to
terminate this Agreement; or
(y) agree to commit to any of the foregoing.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Access to Information; Confidentiality.
(a) Subject to Section 7.1(b), from the Agreement Date
until the earlier of the Effective Time and the date, if any, on which this
Agreement is terminated pursuant to Article X, Target shall (i) provide
to Parent (and Parent’s officers, directors, employees, accountants,
consultants, legal counsel, agents and other representatives) reasonable access
during normal business hours upon prior notice to the officers, employees,
agents, properties, offices and other facilities of Target to the facilities,
offices, properties, technology, processes, books, business and financial
records, officers, employees, business plans, budget and projections, customers,
suppliers and other information of the Target, and the work papers of its
independent accountants, and otherwise provide such assistance as may be
reasonably requested by such party in order that the other party has a
reasonable opportunity to make such investigation and evaluation as it
reasonably desires to make of the business and affairs of the Target; and (ii)
furnish promptly to Parent such information concerning the business, properties,
contracts, assets, Liabilities, personnel and other aspects of Target as
reasonably requested. Subject to Section 7.1(b), from the Agreement Date
until the earlier of the Effective Time and the date, if any, on which this
Agreement is terminated pursuant to Article X, Parent shall (i) provide
to Target (and Target’s officers, directors, employees, accountants,
consultants, legal counsel, agents and other representatives) reasonable access
during normal business hours upon prior notice to the officers, employees,
agents, properties, offices and other facilities of Parent and its Subsidiaries
to the facilities, offices, properties, technology, processes, books, business
and financial records, officers, employees, business plans, budget and
projections, customers, suppliers and other information of the Parent and its
Subsidiaries, and the work papers of its independent accountants, and otherwise
provide such assistance as may be reasonably requested by such party in order
that the other party has a reasonable opportunity to make such investigation and
evaluation as it reasonably desires to make of the business and affairs of the
Parent and its Subsidiaries; and (ii) furnish promptly to Target such
information concerning the business, properties, contracts, assets, Liabilities,
personnel and other aspects of Parent and its Subsidiaries as reasonably
requested. Each of Parent and Target shall use its reasonable efforts to give
prompt notice to the other party of any event or circumstance of which it
becomes aware that results in any representation or warranty made by such party
contained in this Agreement being untrue or inaccurate in any material respect
or Target, Parent or Merger Sub, as the case may be, being unable to comply with
or satisfy any of its covenants or agreements hereunder; provided,
however, that the receipt of any information or the delivery of any
notice pursuant hereto shall not limit or otherwise affect either party’s rights
or obligations under this Agreement.
(b) Each of Target and Parent (and each of Target’s and
Parent’s officers, directors, employees, accountants, consultants, legal
counsel, agents and other representatives, respectively) shall hold in
confidence all nonpublic information so received in accordance with the terms of
the Confidentiality Agreement. If this Agreement is terminated, the
Confidentiality Agreement shall continue in full force and effect and shall apply to any
information delivered by either party to the other in connection with this
Agreement.
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7.2 Non-Solicitation and Acquisition Proposals.
(a) Except as otherwise provided for in this Agreement each of
Parent and Target agrees that neither it nor any of its Subsidiaries shall, and
Parent and Target shall, and shall cause its Subsidiaries to, cause their
respective officers, directors, investment bankers, attorneys, accountants,
financial advisors, agents and other representatives (collectively,
“Representatives”) not to:
(i) solicit, assist, initiate, knowingly encourage or
facilitate (including by way of discussion (other than to state they are not
permitted to have discussions), negotiation, furnishing information, permitting
any visit to any facilities or properties of Target or Parent or their
respective Subsidiaries, or entering into any form of written or oral agreement,
arrangement or understanding) any inquiries, proposal or offers regarding, or
that may reasonably be expected to lead to, any Acquisition Proposal;
(ii) engage or participate in any discussions (other than to
state they are not permitted to have discussions) or negotiations regarding, or
provide any information with respect to or otherwise cooperate in any way with
any person (other than Target, Parent, and their Representatives) regarding any
Acquisition Proposal or Potential Acquisition Proposal (as defined below);
(iii) withdraw, modify or qualify, or propose publicly to
withdraw, modify or qualify, in any manner adverse to the other party, the
approval or recommendation of the Transactions by such party’s board of
directors or any of its committees except where a Material Adverse Effect in
respect of the other party has occurred and such party’s board of directors has
determined that, as a consequence of such Material Adverse Effect, it would be
inconsistent with the fiduciary duties of the directors of such party to
continue to recommend the Transactions;
(iv) approve or recommend, or remain neutral with respect to,
or propose publicly to approve or recommend, any Acquisition Proposal;
(v) accept or enter into, or publicly propose to accept or
enter into, any letter of intent, agreement in principle, agreement, arrangement
or undertaking related to any Acquisition Proposal (other than an Acceptable
Confidentiality Agreement entered into in accordance with Section 7.2(e)); or
(vi) release any person from or waive or otherwise forebear in
the enforcement of any confidentiality or standstill agreement or any other
agreement with such person that would facilitate the making or implementation of
any Acquisition Proposal.
(b) Target and Parent shall immediately cease and cause to be
terminated any existing solicitation, discussion, negotiation, encouragement or
activity with any Person (other than Parent, Target, or any of their
Representatives) by Target, Parent, or any of their Representatives with respect
to any Acquisition Proposal or any Potential Acquisition Proposal. Target and
Parent shall immediately cease to provide any Person (other than Parent, Target,
or any of their Representatives) with access to information concerning Target or
Parent in respect of any Acquisition Proposal or any Potential Acquisition Proposal,
and request the return or destruction of all confidential information provided
to any Person (other than Parent, Target, or any of their Representatives) that
has entered into a confidentiality agreement with Target or Parent relating to
any Acquisition Proposal or Potential Acquisition Proposal to the extent
provided for in such confidentiality agreement and shall use all commercially
reasonable efforts to ensure that such requests are honored.
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(c) Target and Parent shall ensure that their Representatives
are aware of the prohibitions in this Section 7.2 and shall be responsible for
any breach of this Section 7.2 by their Representatives.
(d) Parent and Target shall promptly (and in any event within
24 hours) notify the other party, at first orally and then in writing, of any
proposal, inquiry, offer or request received by Target, Parent, or their
Representatives: (i) relating to an Acquisition Proposal or potential
Acquisition Proposal or inquiry that could reasonably lead or be expected to
lead to an Acquisition Proposal (a “Potential Acquisition Proposal”);
(ii) for discussions or negotiations in respect of an Acquisition Proposal or
Potential Acquisition Proposal; or (iii) for non-public information relating to
Target or Parent, or any of their respective Subsidiaries, access to properties,
books and records or a list of the holders of Target's shares, Parent’s shares
or the shareholders of any of their respective Subsidiaries. Such notice shall
include the identity of the person making such proposal, inquiry, offer or
request, a description of the terms and conditions thereof and Target or Parent
shall provide a copy of any Acquisition Proposal and all written communications
with such person and such details of the proposal, inquiry, offer or request
that Parent or Target may reasonably request. Target shall keep Parent, and
Parent shall keep Target promptly and fully informed of the status, including
any change to the material terms, of such proposal, inquiry, offer or request
and shall respond promptly to all inquiries by the other party with respect
thereto.
(e) Notwithstanding Section 7.2(a), following the receipt by
Target or Parent of a bona fide written Acquisition Proposal made after the date
of this Agreement that did not result from any breach of Section 7.2(a), Target,
Parent, or their Representatives may:
(i) contact the Person making such Acquisition Proposal and its
Representatives solely for the purpose of clarifying the terms and conditions of
such Acquisition Proposal and the likelihood of its consummation so as to
determine whether such Acquisition Proposal is, or is reasonably likely to lead
to, a Superior Proposal; and
(ii) if the board of directors of Target or Parent, as
applicable, determines, after consultation with its outside legal and financial
advisors, that such Acquisition Proposal is, or is reasonably likely to lead to,
a Superior Proposal:
(A) furnish information with respect to Target or Parent and
its Subsidiaries, as applicable, to the Person making such Acquisition Proposal
and its Representatives only if such Person has entered into a confidentiality
agreement that contains provisions that are not less favorable to Target (or
Parent) than those contained in the Confidentiality Agreement, (an
“Acceptable Confidentiality Agreement”), provided that Target or Parent,
as applicable, sends a copy of such confidentiality agreement to Parent or
Target, as applicable, promptly following its execution and Parent or Target, as
applicable, is promptly provided with a list of, and access to (to the extent
not previously provided to Parent or Target, as applicable) the information
provided to such Person; and
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(B) engage in discussions and negotiations with the Person
making such Acquisition Proposal and its Representatives provided that all such
information access and discussions shall cease during the Match Period (as
defined below).
(f) Notwithstanding Section 7.2(a), Target or Parent may (i)
enter into an agreement (other than an Acceptable Confidentiality Agreement
entered into in accordance with Section 7.2(e)) with respect to an Acquisition
Proposal that is a Superior Proposal and/or (ii) withdraw, modify or qualify its
approval or recommendation of the Transactions and recommend or approve an
Acquisition Proposal that is a Superior Proposal (an “Adverse Recommendation
Change”), provided:
(i) Target or Parent shall have complied with its obligations
under this Section 7.2;
(ii) the board of directors of Target or the board of directors
of Parent, as applicable, has determined, after consultation with its outside
legal and financial advisors, that such Acquisition Proposal is a Superior
Proposal;
(iii) Target or Parent has delivered written notice to the
other party of the determination of the board of directors of Target or the
board of directors or Parent, as applicable, that the Acquisition Proposal is a
Superior Proposal and of the intention of the board of directors of Target or
the board of directors of Parent, as applicable, to approve or recommend such
Superior Proposal and/or of Target or Parent, as applicable, to enter into an
agreement with respect to such Superior Proposal, together with a copy of such
agreement executed by the Person making such Superior Proposal that is capable
of acceptance by Target or Parent, as applicable, and a summary of the valuation
analysis attributed by the board of directors of Target or the board of
directors of Parent, as applicable, in good faith to any non-cash consideration
included in such Acquisition Proposal after consultation with its financial
advisors, and together with a summary analysis articulating why the Acquisition
Proposal is determined by the board of directors of Target or the board of
directors of Parent to be a Superior Proposal (the "Superior Proposal
Notice");
(iv) at least five Business Days have elapsed since the date
the Superior Proposal Notice was received by Parent or Target, which five
Business Day period is referred to as the "Match Period";
(v) if Parent (or Target) has offered to amend the terms of the
Transaction and this Agreement during the Match Period pursuant to Section
7.2(g) below, such Acquisition Proposal continues to be a Superior Proposal
compared to the amendment to the terms of the Transaction offered by Parent (or
Target) at the termination of the Match Period; and
(vi) Target or Parent, as applicable, terminates this Agreement
in compliance with the terms of this Section 7.2 and Target or Parent, as
applicable, has previously paid or, concurrently with termination, pays in cash
a break fee of US$5 million to the other party.
(g) During the Match Period, Parent or Target shall have the
opportunity, but not the obligation, to offer to amend the terms of the
Transaction and this Agreement and Target and Parent shall cooperate with the
other party with respect thereto, including negotiating in good faith with the other party to enable the other party to make
such adjustments to the provisions of the Transaction and this Agreement as the
other party deems appropriate and as would enable the other party to proceed
with the Transaction on such adjusted provisions. The board of directors of
Target or the board of directors of Parent shall review any such offer by the
other party to amend the terms of the Transaction and this Agreement in order to
determine, in good faith in the exercise of its fiduciary duties, whether the
other party’s offer to amend the Transaction and this Agreement, upon its
acceptance, would result in the Acquisition Proposal ceasing to be a Superior
Proposal compared to the amendment to the terms of the Transaction and this
Agreement offered by the other party. If the board of directors of Target or
board of directors of Parent, as applicable, determines that the Acquisition
Proposal would cease to be a Superior Proposal, Target and Parent shall enter
into an amendment to this Agreement reflecting the offer by the other party to
amend the terms of the Transaction and this Agreement.
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(h) The board of directors of Target or the board of directors
of Parent, as applicable, shall reaffirm its recommendation of the Transaction
by news release promptly after: (i) any Acquisition Proposal (which is
determined not to be a Superior Proposal) is publicly announced or made, (ii)
the board of directors of Target (or the board of directors of Parent)
determines that a proposed amendment to the terms of the Transaction and this
Agreement would result in the Acquisition Proposal not being a Superior Proposal
and the other party has so amended the terms of the Transaction; or (iii) the
written request of Parent (or Target) given on or within five Business Days
ending the Business Day before a meeting of Target or Parent shareholders called
to consider approving the Transaction. Parent, Target and their legal advisors
shall be given a reasonable opportunity to review and comment on the form and
content of any such news release and Target or Parent shall incorporate all
reasonable comments made by the other party and its legal advisors.
(i) Each successive material modification of any Acquisition
Proposal shall constitute a new Acquisition Proposal for purposes of this
Section 7.2.
(j) Nothing contained in this Section 7.2 shall prohibit Target
or the Target’s board of directors or Parent or Parent’s board of directors from
(i) disclosing to the shareholders of Target or Parent, as applicable, a
position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the
Exchange Act if the Target’s board of directors or Parent’s board of directors,
as applicable, determines in good faith, after consultation with outside
counsel, that the failure to make such disclosure would be inconsistent with its
fiduciary duties; provided that making such disclosure shall not in any way
limit or modify the effect, if any, that any such action has under this Section
7.2 (for the avoidance of doubt, it being agreed that the issuance by Target or
Target’s board of directors or Parent or Parent’s board of directors, as
applicable, of a “stop, look and listen” statement pending disclosure of its
position, as contemplated by Rules 14d-9(f) promulgated under the Exchange Act,
shall not constitute an Adverse Recommendation Change).
7.3 Cooperation. Subject to compliance with applicable
Law, from the Agreement Date until the Effective Time, each of Parent and Target
shall confer on a regular and frequent basis with one or more representatives of
the other to report on their respective material operational matters and the
general status of ongoing operations and each party shall promptly provide the
other party or its counsel with copies of all filings made by such party with
any Governmental Authority in connection with this Agreement and the
Transactions.
7.4 Publicity. Neither Target, Parent nor any of their
respective affiliates or representatives shall issue or cause the publication of
any press release or other announcement with respect to the Transactions other than a joint press release of Target and
Parent announcing the execution of this Agreement or without the prior
consultation of the other party, except as may be required by applicable Law,
and each party shall use its reasonable efforts to provide copies of such
release or other announcement to the other party hereto, and give due
consideration to such comments as each such other party may have, prior to such
release or other announcement. For the avoidance of doubt, the provisions of
this Section 7.4 do not apply to (i) any announcement, document or publication
in connection with an Acquisition Proposal, Superior Proposal or Adverse
Recommendation Change or (ii) any disclosure by Target or Parent of any
information concerning this Agreement or the Transactions in connection with any
dispute between the parties regarding this Agreement, the Merger or the
Transactions.
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7.5 Filings. Each party shall make all filings such
party is required to make in connection herewith or desirable to achieve the
purposes contemplated hereby, including all required or advisable filings under
or relating to the HSR Act, or the rules and regulations promulgated by the
United States Nuclear Regulatory Commission, shall respond as promptly as
practicable to all inquiries or requests for information received from a
Governmental Authority in relation to such filings or notices for additional
information or documentation and shall cooperate as needed with respect to any
such filings by any other party. Each party shall use its commercially
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all other things necessary, proper or appropriate to resolve
the objections, if any, as may be asserted by the agencies or any other
authority with respect to the transactions contemplated by this Agreement under
any antitrust or competition laws or regulations; provided that no party shall
be required to take any action under this Section 7.5 that would, or would be
reasonably likely to, materially frustrate the financial or other business
benefits reasonably expected to be derived by such party from the transactions
contemplated by this Agreement. Notwithstanding the foregoing, neither Parent
nor Target shall be required to accept, as a condition to obtaining any required
approval or resolving any objection of any Governmental Authority, any
requirement to divest or hold separate or in trust (or the imposition of any
other material condition or restriction with respect to) any of the respective
businesses or assets of Parent, Merger Sub, Target or any of their respective
Subsidiaries.
7.6 Employee Matters
(a) On and after the Closing, until at least the 90th day after
the Closing, Parent shall cause the Surviving Entity to provide each employee of
Target or any of its affiliates who is retained by the Surviving Entity or any
of their affiliates following the Closing (each, a “Continuing Employee”)
with (i) salary that is not less than the Continuing Employee’s salary
immediately prior to the Closing, and (ii) the benefit plans, programs and
arrangements that are currently provided to the Parent’s employees under
Parent’s benefit plans, programs and arrangements. Each Continuing Employee
shall be given credit under such plan for the last continuous period of service
with Target and its affiliates prior to the Closing for purposes of determining
eligibility to participate, vesting in benefits and vacation and severance
benefits, but for no other purpose (including, without limiting the generality
of the foregoing, the accrual of benefits);
(b) Parent agrees that, upon the Closing, each Continuing
Employee shall be immediately eligible to participate in Parent’s group health
plan (as defined in Section 5000(b)(1) of the Code) (and Parent shall cause to
be waived any eligibility waiting periods, any evidence of insurability
requirements and the application of any pre- existing condition limitations
under such plan), and such Continuing Employee shall be credited towards the
deductibles, coinsurance and maximum out-of-pocket provisions, imposed under
such group health plan, for the calendar year during which the Closing Date
occurs, with any applicable expenses already incurred during the portion of the
year preceding the Closing Date under the applicable group health plans of the
Company; provided, however, such obligation of Parent is contingent on Target
furnishing sufficient information in sufficiently usable form to enable
Parent to reasonably administer its plan. As of the Closing Date, Parent shall
or shall cause the Surviving Entity or relevant affiliate to, credit to the
Continuing Employees the amount of vacation time that such employees had accrued
under any of Target’s vacation policies as of the Closing Date;
54
(c) Parent shall, or shall cause the Surviving Entity or
relevant affiliate to, assume and honor in accordance with their terms all
change in control and termination agreements (including any change in control
provisions therein) set forth in Section 4.17 of the Target Disclosure Letter
applicable to employees of the Target arising from completion of the
Transactions in the same manner and to the same extent that Target would be
required to perform and honor such agreements if the transactions contemplated
by this Agreement had not been consummated. Provided, however, that to the
extent that Parent or the Surviving Entity or any other affiliate of Parent
offers employment to any employee of the Target following completion of the
Merger, such employment shall be on terms concerning future changes of control
and termination agreed to between the employee and Parent or its affiliate that
are consistent with the terms currently in effect for the employees of the
Parent and its affiliates.
7.7 Preparation of the Form F-4 and Proxy
Statement/Prospectus.
(a) As soon as practicable following the date of this
Agreement, Parent and Target shall each promptly prepare and file with the SEC a
preliminary version of the Proxy Statement/Prospectus and the Parent will
prepare and file with the SEC the Form F-4, in which the Proxy
Statement/Prospectus will be included as a prospectus.
(b) Each of Parent and Target will use its commercially
reasonable efforts to respond to any comments of the SEC in connection therewith
and to furnish all information required to prepare the definitive Proxy
Statement/Prospectus and the final Form F-4.
(c) Each of Parent and Target shall use its commercially
reasonable best efforts to have the Form F-4 declared effective under the
Securities Act as promptly as practicable after such filing.
(d) Parent shall also take any action (other than qualifying to
do business in any jurisdiction in which it is not now so qualified or filing a
general consent to service of process in any jurisdiction) required to be taken
under any applicable state securities laws in connection with the issuance of
the Parent Common Shares in the Merger and Target shall furnish all information
concerning Target and the holders of shares of Target capital stock as may be
reasonably requested in connection with any such action.
(e) Promptly after the effectiveness of the Form F-4, Target
shall cause the Proxy Statement/Prospectus to be published, sent or given to
Target’s shareholders, and if necessary, after the definitive Proxy
Statement/Prospectus has been published, sent or given, promptly circulate
amended, supplemented or supplemental proxy materials and, if required in
connection therewith, re-solicit proxies.
(f) Each party shall cooperate and provide the other party with
a reasonable opportunity to review and comment on any amendment or supplement to
the Form F-4 or the Proxy Statement or any filing with the SEC incorporated by
reference in the Form F-4 or the Proxy Statement, in each case prior to filing
such with the SEC, except where doing so would cause the filing to not be
filed timely, without regard to any extension pursuant to Rule 12b-25 of the
Exchange Act; provided, however, that each party shall be deemed
to have consented to the inclusion in the Form F-4, the Proxy Statement or any filing
with the SEC incorporated by reference in the Form F-4 or the Proxy Statement of
any information, language or content specifically agreed to by such party or its
counsel on or prior to the date hereof for inclusion therein.
55
(g) Parent will advise the Target promptly after it receives
notice of (i) the time when the Form F-4 has become effective or any supplement
or amendment has been filed, (ii) the issuance or threat of any stop order,
(iii) the suspension of the qualification of the Parent Common Share issuable in
connection with this Agreement for offering or sale in any jurisdiction, or (iv)
any request by the SEC for amendment of the Proxy Statement/Prospectus or the
Form F-4 or comments thereon and responses thereto or requests by the SEC for
additional information (and shall deliver a copy of such comments and requests
to the Target).
(h) Target will advise Parent, and Parent will advise Target,
promptly after it receives notice of the issuance by the SEC, any Canadian
Securities Regulatory Authority, as applicable, any other securities regulatory
authority, the TSX, NYSE MKT or by any other competent authority of any order to
cease or suspend trading of any securities of Target or Parent, as applicable,
or of the institution or threat of institution of any proceedings for that
purpose.
(i) If at any time prior to the Effective Time any information
relating to Target or Parent, or any of their respective affiliates, officers or
directors, should be discovered by Target or Parent which should be set forth in
an amendment or supplement to either of the Form F-4 or the Proxy
Statement/Prospectus, so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, the party which discovers such information shall promptly
notify the other parties hereto and an appropriate amendment or supplement,
including, where appropriate, a filing pursuant to Rules 165 and 425 of the
Securities Act, describing such information shall promptly be filed with the SEC
and, to the extent required by law, disseminated to the shareholders of Target
or Parent.
7.8 Target Shareholders’ Meeting. Target shall, as
promptly as reasonably practicable after receiving notice from Parent that the
Form F-4 has been declared effective under the Securities Act, (i) take all
action necessary in accordance with applicable Law and the articles of
incorporation and bylaws of Target duly to give notice of, convene and hold a
meeting of its shareholders to be held as promptly as practicable to consider
the approval of this Agreement and the Merger (the “Target Meeting”);
(ii) engage a proxy solicitation agent, which is approved by the Parent (such
approval not to be unreasonably withheld), to advise on and assist with the
solicitation of proxies in connection with the Target Shareholder Approvals;
(iii) use commercially reasonable efforts to solicit from its shareholders
proxies in favor of the Target Shareholder Approvals and (iv) will take all
other action reasonably necessary or advisable to secure the vote of its
shareholders required by the rules of the NYSE MKT, the TSX or applicable Law to
obtain such approvals. Notwithstanding anything to the contrary contained in
this Agreement, Target may adjourn or postpone the Target Meeting to the extent
necessary to ensure that any necessary supplement or amendment to the Proxy
Statement/Prospectus is provided to its shareholders in advance of a vote on the
approval of this Agreement and the Merger, or, if as of the time for which the
Target Meeting is originally scheduled, there are insufficient Target Common
Shares, as the case may be, represented (either in person or by proxy) to
constitute a quorum necessary to conduct the business of such meeting. Target
shall use commercially reasonable efforts such that the Target Meeting is
called, noticed, convened, held and conducted, and that all proxies solicited in
connection with the Target Meeting are solicited in compliance with applicable
Law, the rules of the NYSE MKT, the TSX and the articles of incorporation and
bylaws of Target. Notwithstanding anything contained herein to the contrary, Target shall not be required to hold the Target Meeting if this
Agreement is terminated or if there is an Adverse Recommendation Change by
Target before the Target Meeting is held.
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7.9 Stock Exchange Listing. Parent shall use its
reasonable best efforts to cause the Parent Common Shares to be issued in the
Merger and upon exercise of the Substituted Options and the Assumed Warrants to
be approved for listing on each of the NYSE MKT and the TSX at or prior to the
Effective Time, subject to official notice of issuance.
7.10 Notice of Certain Events. Target shall give prompt
notice to Parent of any fact, event or circumstance as to which Target obtains
Knowledge that would be reasonably likely to result in a failure of a condition
set forth in Section 8.2(a) or (b). Parent shall give prompt
notice to Target of any fact, event or circumstance as to which Parent obtains
Knowledge that would be reasonably likely to result in a failure of a condition
set forth in Section 8.3(a) or (b). Prior to the Closing, Target
may deliver to Parent a supplement or update to the Target Disclosure Letter
that reflects any event, condition or circumstance occurring or arising after
the Agreement Date that is not otherwise prohibited pursuant to this Agreement
and which, in the aggregate taking into account all supplemental disclosures
(the “Target Supplemental Disclosures”) provided pursuant to this
Section 7.10, have not had and would not reasonably be expected to have a
Material Adverse Effect on Target, in which case, prior to the Closing, the
specified representations and warranties made by Target will be deemed modified
to reflect such event as of the date that such event occurs or arises for
purposes of determining whether the conditions set forth in Section 8.2 have
been satisfied. Prior to the Closing, Parent may deliver to Target a supplement
or update to the Parent Disclosure Letter that reflects any event, condition or
circumstance occurring or arising after the Agreement Date that is not otherwise
prohibited pursuant to this Agreement and which, in the aggregate taking into
account all supplemental disclosures (the “Parent Supplemental
Disclosures”) provided pursuant to this Section 7.10, have not had and would
not reasonably be expected to have a Material Adverse Effect on Parent, in which
case, prior to the Closing, the specified representations and warranties made by
Parent will be deemed modified to reflect such event as of the date that such
event occurs or arises for purposes of determining whether the conditions set
forth in Section 8.3 have been satisfied.
7.11 Section 16. Prior to the Effective Time, the Target
shall take all such steps as may be required to cause to be exempt under Rule
16b-3 promulgated under the Exchange Act any dispositions of Target Common
Shares (including derivative securities with respect to such shares) that are
treated as dispositions under such rule and result from the transactions
contemplated by this Agreement by each director or officer of the Target who is
subject to the reporting requirements of Section 16(a) of the Exchange Act with
respect to the Target.
7.12 Takeover Statutes. Target and Parent shall (i) take
all action necessary to ensure that no state takeover statute or similar statute
or regulation is or becomes applicable to this Agreement, the Merger or any of
the transactions contemplated hereby and (ii) if any state takeover statute or
similar statute or regulation becomes applicable to this Agreement or any of the
transactions contemplated hereby, take all action necessary to ensure that such
transactions may be consummated as promptly as practicable on the terms required
by, or provided for, in this Agreement and otherwise to minimize the effect of
such statute or regulation on the Merger and the other transactions contemplated
by this Agreement.
7.13 Parent Shareholders’ Meeting. Parent shall, as
promptly as reasonably practicable after the Form F-4 has been declared
effective under the Securities Act, (i) take all steps reasonably necessary to
call, give notice of, convene and hold a special (or annual and special) meeting
of its shareholders (the “Parent Meeting”) for the purpose of securing
the Parent Shareholders’ Approval, (ii) distribute to its shareholders a
management information circular in accordance with applicable Law (the
“Parent MIC”), which Parent MIC shall contain the recommendation of the Parent
board of directors that its shareholders approve this Agreement, (iii) use its
commercially reasonable efforts to solicit from its shareholders proxies in
favor of the approval of this Agreement and to secure the Parent Shareholders’
Approval and (iv) cooperate and consult with Target with respect to each of the
foregoing matters. Notwithstanding any Adverse Recommendation Change by the
Target board of directors or the commencement, public proposal, public
disclosure or communication to Parent by Target of any Acquisition Proposal with
respect to Target or any of its Subsidiaries, or any other fact or circumstance
(except for termination of this Agreement pursuant to Article X), this Agreement
shall be submitted to the shareholders of Parent at the Parent Meeting for the
purpose of adopting this Agreement, with such disclosures as shall be required
by applicable Law. As of the Effective Time, and subject to applicable Law,
Parent shall appoint Dennis Higgs, Glenn Catchpole and Paul Saxton, each of
which are existing members of the board of directors of Target, to the board of
directors of Parent which shall be comprised of at least nine (9) members.
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7.14 Consents of Accountants. Target and Parent will
each use commercially reasonable efforts to cause to be delivered to each other
consents from their respective independent auditors, dated as of the date on
which the Form F-4 is filed with the SEC, as amended or supplemented, or becomes
effective or a date not more than two days prior to such date, in form
reasonably satisfactory to the recipient and customary in scope and substance
for consents delivered by independent public accountants in connection with
registration statements on Form F-4 under the Securities Act.
7.15 Commercially Reasonable Efforts. Upon the terms and
subject to the conditions set forth in this Agreement but subject to Section
7.2, each of the parties agrees to use commercially reasonable efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by this
Agreement, including commercially reasonable efforts to accomplish the
following: (i) the taking of all acts necessary to cause the conditions to the
Closing to be satisfied (but in no event shall a party be required to waive any
such condition) as promptly as practicable; (ii) the obtaining of all necessary
actions or nonactions, waivers, consents, clearances and approvals from
Governmental Authorities and the making of all necessary registrations and
filings, and the taking of all steps as may be necessary to obtain an approval,
clearance or waiver from, or to avoid an action or proceeding by, any
Governmental Authority, including under the HSR Act, or any foreign competition
laws, in each case to the extent determined to be applicable to the Merger and
the parties hereto, (iii) the obtaining of all necessary consents, approvals or
waivers from third parties, (iv) taking all steps as may be necessary to obtain
all such waiting period expirations or terminations, consents, clearances,
waivers, licenses, registrations, permits, authorizations, orders and
approvals.
7.16 Shareholder Rights Plan. Target will take
steps to cause the Target Shareholder Rights Plan to terminate as of the
Effective Time and each Target Right issued under the Target Shareholder Rights
Plan will terminate and be of no further force or effect effective as of the
Effective Time without any payment to any holder of such Target Rights.
7.17 Obligation to Indemnify and Maintain Insurance.
Prior to the Effective Time, Target shall purchase customary “tail” policies of
directors’ and officers’ liability insurance providing protection no less
favourable in the aggregate to the protection provided by the policies
maintained by Target that are in effect immediately prior to the Effective Time
and providing protection in respect of claims arising from facts or events which
occurred on or prior to the Effective Time and Parent will, or will cause
Surviving Entity and its subsidiaries to, maintain such tail policies in effect
without any reduction in scope or coverage for six (6) years from the Effective
Time. If a tail policy is not available, then Parent agrees that for the period
of two years following the Effective Time, Parent shall cause Surviving Entity
or any successor to Surviving Entity (including any successor resulting from any
winding-up or liquidation or dissolution of any of them) to maintain Target’s
current directors’ and officers’ insurance policies or substantially equivalent
policies subject in either case to terms and conditions no less advantageous to
the directors and officers of Target than those contained in the policies in
effect on the date of this Agreement, for all present and former directors and
officers of Target, covering claims made prior to or within such two year
period, provided the Parent shall not be required to spend annual premiums in
excess of 300% of the premiums paid by Target. Parent and Surviving Entity will
assume and perform the obligations of Target under each indemnification
agreement entered into between Target and the Indemnified Parties that is in
effect immediately prior to the Effective Time and will delivery on Closing the
written agreement of Parent and Surviving Corporation to assume and perform such
obligations. Parent shall cause the Surviving Entity to reimburse all expenses,
including reasonable attorney’s fees, incurred by any Person to enforce the
obligations of Parent and Surviving Entity under this Section 7.17.
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7.18 NI 43-101 Technical Reports.
(a) Target shall take all steps necessary to ensure that, as of
the date (in this subsection the “Filing Date”) which Target files on
SEDAR pursuant to NI 71-102 a Form 10-K in respect of its financial year ended
December 31, 2014, it has filed a technical report in respect of each mineral
property which is material to Target as of the Filing Date which complies with
the requirements of NI 43-101 and which is current as of the Filing Date.
Subject to Parent’s prior approval of all independent qualified persons selected
by Target in connection with the preparation of such technical report, Parent
shall pay fifty percent of the cost for the preparation of any such technical
report.
(b) Parent shall take all steps necessary to ensure that as of
the date on which Parent files on SEDAR an annual information form in respect of
its financial year ended December 31, 2014, Parent has filed a technical report
in respect of each mineral property which is material to Parent as of such
Filing Date which complies with the requirements of NI 43-101 and which is
current as of the Filing Date.
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
8.1 Conditions to the Obligation of Each Party. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Time of the following conditions:
(a) The Target Shareholder Approvals:
(i) The Target Shareholders’ Approval shall have been obtained.
(ii) The Unaffiliated Shareholders’ Approval shall have been
obtained.
(b) No action, suit or proceeding instituted by any
Governmental Authority of competent jurisdiction shall be pending and no
statute, rule, order, decree or regulation and no injunction, order, decree or
judgment of any court or Governmental Authority of competent jurisdiction may be
in effect, in each case, that would prohibit, restrain, enjoin or restrict the
consummation of the Transactions; provided, however, that, subject to
Section 7.5, the party seeking to terminate this Agreement pursuant to
this Section 8.1(b) must have used its reasonable best efforts to cause
this condition to be satisfied.
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(c) The Form F-4 shall have become effective in accordance with
the provisions of the Securities Act and no stop order suspending the
effectiveness of the Form F-4 shall be in effect and no proceeding for such
purpose shall be pending before or threatened by the SEC.
(d) The Parent Common Shares to be issued in the Merger and
upon exercise of the Substituted Options and the Assumed Warrants shall have
been approved (or conditionally approved, as applicable) for listing on the NYSE
MKT and the TSX, subject to official notice of issuance or customary
conditions.
(e) Any applicable waiting period under the HSR Act shall have
expired or been terminated.
(f) All filings with, and all consents, approvals and
authorizations of, any Governmental Authority required to be made or obtained by
the Parent Parties, the Target or any of their subsidiaries to consummate the
Merger, including, without limitation, any required filings and or approvals of
the United States Nuclear Regulatory Commission and the State of Utah Division
of Radiation Control, shall have been made or obtained, other than those that if
not made or obtained would not, individually or in the aggregate, have a
Material Adverse Effect on the Target, Parent or Surviving Entity (in each case,
determined, for purposes of this clause, after giving effect to the Merger).
(g) There shall not be any suit, action, investigation, inquiry
or other proceeding instituted, pending or threatened by any governmental or
other regulatory or administrative agency or commission that seeks to enjoin,
prevent, materially delay or otherwise impose material limitations on the
consummation of the transactions contemplated by this Agreement.
(h) The Parent Shareholders’ Approval shall have been obtained.
(i) CFIUS Approval shall have been obtained.
8.2 Conditions to the Obligations of the Parent Parties.
The obligation of the Parent Parties to effect the Merger is subject to the
satisfaction at or prior to the Effective Time of the following conditions:
(a) The representations and warranties of Target that are not
subject to materiality or Material Adverse Effect set forth in this Agreement
shall be true and correct as of the Agreement Date and as of the Closing Date,
as if made at and as of such time (except to the extent expressly made as of an
earlier date, in which case as of such date), except where the failure of such
representations and warranties that are not subject to materiality or Material
Adverse Effect to be so true and correct individually or in the aggregate has
not had, and would not be reasonably likely to have or result in, a Material
Adverse Effect with respect to Target, and the representations and warranties of
Target that are subject to materiality or Material Adverse Effect set forth in
this Agreement shall be true and correct as of the Agreement Date and as of the
Closing Date, as if made at and as of such time (except to the extent expressly
made as of an earlier date, in which case as of such date). Parent shall have
received a certificate signed on behalf of Target by its Chief Executive Officer
and Chief Financial Officer to the foregoing effect.
(b) Target shall have performed or complied in all material
respects with each of its obligations under this Agreement and any Ancillary
Agreement to which it is a party required to be performed or complied with by it
at or prior to the Effective Time pursuant to the terms of such Agreement. Parent shall have received a certificate signed
on behalf of Target by its Chief Executive Officer and Chief Financial Officer
to the foregoing effect.
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(c) From the Agreement Date through the Effective Time, there
shall not have occurred any Material Adverse Effect with respect to Target or
any event, change or circumstance that would reasonably be likely to result in a
Material Adverse Effect with respect to Target.
(d) Parent shall have received an opinion, dated the Closing
Date, of counsel to Target, in form and substance reasonably satisfactory to
Parent, based upon facts, representations and assumptions set forth in such
opinion which are consistent with the state of facts at the Effective Time, to
the effect that the Target Common Shares shall be regularly traded on an
established securities exchange within the meaning of Treasury Regulation
Section 1.897 -9T(d) as of the Closing Date. In rendering such opinion, counsel
may require and rely upon factual representations contained in certificates of
the officers of the Parent Parties and Target.
(e) Parent shall have received evidence reasonably satisfactory
to it that the aggregate amount of all unpaid costs and expenses incurred by
Target or its Subsidiaries in connection with this Agreement and the
Transactions is not in excess of $1,500,000 (excluding commissions and fees paid
to Haywood or Euro Pacific)(it being understood and agreed that any costs and
expenses that Target shall pay from its available cash at Closing shall be
considered paid from such available cash for purposes of this Section
8.2(f)).
(f) Taxes required to be withheld by Parent or Merger Sub under
Section 1445 of the Code shall not exceed $2,000,000.
(g) Each consent, waiver and approval set forth in Section
4.4 of this Agreement must have been obtained, and Target must have provided
Parent with copies thereof.
(h) The number of Dissenting Shares held by stockholders
of Target who have exercised dissent rights granted in accordance with Section
3.4 of this Agreement will comprise less than 5% of the issued and outstanding
Target Common Shares.
8.3 Conditions to the Obligations of Target. The
obligation of Target to effect the Merger is subject to the satisfaction at or
prior to the Effective Time of the following conditions:
(a) The representations and warranties of Parent and Merger Sub
set forth in this Agreement shall be true and correct (without giving effect to
any limitation as to “materiality” or “Material Adverse Effect” set forth
therein) as of the Agreement Date and as of the Closing Date, as if made at and
as of such time (except to the extent expressly made as of an earlier date, in
which case as of such date), except where the failure of such representations
and warranties to be so true and correct (without giving effect to any
limitation as to “materiality” or “Material Adverse Effect” set forth therein)
individually or in the aggregate has not had, and would not be reasonably likely
to have or result in, a Material Adverse Effect with respect to Parent;
provided, however, that the representations and warranties of Parent set
forth in Sections 5.1 and 5.2 shall be true and correct at such
times in all material respects without giving effect to any limitation as to
“materiality” or “Material Adverse Effect” set forth therein. Target shall have
received a certificate signed on behalf of Parent by an authorized officer to
the foregoing effect.
(b) Each of Parent and Merger Sub shall have performed or
complied in all material respects with each of its obligations under this
Agreement and any Ancillary Agreement to which it is a party required to be
performed or complied with by it at or prior to the Effective Time pursuant to the terms of such Agreement. Target shall have
received a certificate signed on behalf of Parent by an authorized officer to
the foregoing effect.
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(c) From the Agreement Date through the Effective Time, there
shall not have occurred any Material Adverse Effect with respect to Parent or
any event, change or circumstance that would reasonably be likely to result in a
Material Adverse Effect with respect to Parent.
(d) The Target Board Nominees will have been appointed to the
board of directors of Parent to be effective immediately after the Effective
Time, and the board of directors of Parent will be constituted as provided in
Section 7.13 of this Agreement.
(e) Each consent, waiver and approval set forth in Section 5.4
of this Agreement must have been obtained, and Parent must have provided target
with copies thereof.
ARTICLE IX
SURVIVAL
9.1 Survival of Representations and Warranties. The
representations and warranties of the parties contained in this Agreement shall
not survive the Effective Time.
9.2 Survival of Covenants and Agreements. The covenants
and agreements of the parties to be performed after the Effective Time contained
in this Agreement shall survive the Effective Time.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 Term and Termination. This Agreement shall be
effective from the date hereof until the earlier of (i) the Effective Time, and
(ii) the termination of this Agreement in accordance with its terms. This
Agreement may be terminated at any time prior to the Effective Time, whether
before or after its approval by the shareholders of Target or Parent:
(a) by the mutual written agreement of Parent and Target;
(b) by either Parent or Target, if the Effective Time has not
occurred on or before July 31, 2015 (the “Termination Date”);
provided, however, that the right to terminate this Agreement pursuant to
this Section 10.1(b) shall not be available to a party whose failure to
fulfill any obligation under this Agreement or breach of any of its
representations and warranties under this Agreement has been the cause of, or
resulted in, the failure of the Merger to have been consummated on or before
such date;
(c) by either Target or Parent, if after the date hereof, there
shall be enacted or made any applicable Law that makes consummation of the
Merger illegal or otherwise prohibited or if any judgment, injunction, order or
decree of a court or other Governmental Authority of competent jurisdiction
restrains, enjoins or prohibits the consummation of the Merger, and such
judgment, injunction, order or decree becomes final and non-appealable;
provided, however, that, subject to Section 7.5, the right to
terminate pursuant to this Section 10.1(c) shall not be available to any
party whose failure to fulfill any obligation under this Agreement has been the
cause of or resulted in such action;
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(d) by Target, if there has been a breach by Parent or Merger
Sub of any representation, warranty, covenant or agreement set forth in this
Agreement which breach (i) would give rise to the failure of a condition set
forth in Section 8.3(a) or 8.3(b) and (ii) if susceptible to cure,
has not been cured in all material respects prior to the earlier to occur of (x)
20 Business Days following delivery by Target and receipt by Parent of written
notice of such breach or (y) the Termination Date;
(e) by Parent, if there has been a breach by Target of any
representation, warranty, covenant or agreement set forth in this Agreement
which breach (i) would give rise to the failure of a condition set forth in
Section 8.2(a) or 8.2(b) and (ii) if susceptible to cure, has not
been cured in all material respects prior to the earlier to occur of (x) 20
Business Days following delivery by Parent and receipt by Target of written
notice of such breach and (y) the Termination Date;
(f) by either Target or Parent, if the Target Shareholder
Approvals are not obtained because of the failure to obtain such approval upon a
vote at the Target Meeting;
(g) by either Target or Parent, if the Parent Shareholders’
Approval is not obtained because of the failure to obtain such approval upon a
vote at the Parent Meeting;
(h) (i) by Parent or Target, if the other respective party
shall have breached or failed to perform in any material respect any of its
covenants or other agreements contained in Section 7.2, (ii) by Parent if
Target shall have failed to hold or otherwise be in material breach of its
obligations to hold the Target Meeting in accordance with its obligations under
Section 7.8, (iii) by Target if Parent shall have failed to hold or
otherwise be in material breach of its obligations to hold the Parent Meeting in
accordance with its obligations under Section 7.13, or (iv) by Parent or
Target, if the board of directors of the other party or any committee thereof
shall have made an Adverse Recommendation Change;
(i) by Target or Parent, if Target or Parent, as applicable,
will have delivered to Target or Parent, as applicable, the Superior Proposal
Notice of such party’s intent to enter into a merger, acquisition or other
agreement (including an agreement in principle) to effect a Superior Proposal
received by such party in accordance with the provisions of Section 7.2(f)
including the payment by Target to Parent or Parent to Target, as applicable,
the termination fee specified in Section 11.1(b) or Section
11.1(c), as applicable. It is understood and agreed that, prior to any
termination pursuant to this Section 10.1(i) taking effect, any amendment
to the price or any other material term of a Superior Proposal (such amended
Superior Proposal, a “Modified Superior Proposal”) shall require a
new Superior Proposal Notice and a new five Business Day Match Period with
respect to such Modified Superior Proposal.
10.2 Effect of Termination. In the event of the
termination of this Agreement as provided in Section 10.1, written notice
thereof shall forthwith be given by the terminating party to the other party
specifying the provision of this Agreement pursuant to which such termination is
made, and except with respect to the last sentence of each of Section
7.1(a) and Section 7.1(b), this Section 10.2 and Article
XI (and any related definitions contained in any such Sections or Article),
this Agreement shall forthwith become null and void after such termination and
there shall be no liability on the part of Parent, Merger Sub or Target;
provided, however, that nothing herein shall relieve any party from any
liability with respect to any willful, knowing or fraudulent breach of any
representation, warranty, covenant or other obligation under this Agreement.
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ARTICLE XI
MISCELLANEOUS
11.1 Expenses.
(a) Whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement and the Transactions shall
be paid by the party incurring such costs or expenses, except as provided in
this Section 11.1.
(b) Target shall pay Parent a termination fee in the amount of
$5,000,000 (the “Target Termination Fee”), in any of the following
circumstances:
(i) Parent terminates this Agreement pursuant to Section
10.1(h) (breach by Target of Sections 7.2 or 7.8 or in the event of an Adverse
Recommendation Change by the board of directors of Target), except in the event
of an Adverse Recommendation Change by the board of directors of Target
resulting from the occurrence of a Material Adverse Effect in respect of Parent
as contemplated in Section 7.2(a)(iii); or
(ii) Target terminates this Agreement pursuant to Section
10.1(i) (Superior Proposal); or
(iii) (A) Parent terminates this Agreement pursuant to Section
10.1(b) (failure to complete by Termination Date), or (B) either Parent or
Target terminates this Agreement pursuant to Section 10.1(f) (failure to obtain
the Target Shareholders’ Approval), and, after the date hereof and prior to such
termination, an Acquisition Proposal with respect to Target is publicly proposed
by any Person (other than Parent or any of its affiliates) or any Person
publicly announces its intention (whether or not conditional) to make an
Acquisition Proposal with respect to Target or such intention has otherwise
become known to Target’s shareholders generally; provided,
however, that Target shall not be required to pay the Termination Fee to
Parent pursuant to this Section 11.1(b)(iii) prior to entering
into a definitive agreement and consummating a transaction constituting an
Acquisition Proposal, and shall in no event be required to pay such Termination
Fee if such consummation occurs more than twelve months after the termination of
this Agreement;
For the purposes of the foregoing, the term “Acquisition
Proposal” shall have the meaning specified in Section 12.1(b), except that
references to “20% or more” in the definition of “Acquisition Proposal” shall be
deemed to be references to “50% or more”.
(c) Parent shall pay Target a termination fee in the amount of
$5,000,000 (the “Parent Termination Fee”), in any of the following
circumstances:
(i) Target terminates this Agreement pursuant to Section
10.1(h) (breach by Parent of Sections 7.2 or 7.13, as applicable, or in the
event of an Adverse Recommendation Change by the board of directors of Parent),
except in the event of an Adverse Recommendation Change by the board of
directors of Parent resulting from the occurrence of a Material Adverse Effect
in respect of Target as contemplated in Section 7.2(a)(iii); or
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(ii) Parent terminates this Agreement pursuant to Section
10.1(i) (Superior Proposal); or
(iii) (A) Target terminates this Agreement pursuant to Section
10.1(b) (failure to complete by Termination Date), or (B) either Parent or
Target terminates this Agreement pursuant to Section 10.1(g) (failure to obtain
the Parent Shareholders’ Approval), and, after the date hereof and prior to such
termination, an Acquisition Proposal with respect to Parent is publicly proposed
by any Person (other than Target or any of its affiliates) or any Person
publicly announces its intention (whether or not conditional) to make an
Acquisition Proposal with respect to Parent or such intention has otherwise
become known to Parent’s shareholders generally; provided, however, that Parent
shall not be required to pay the Termination Fee to Target pursuant to this
Section 11.1(c)(iii) prior to entering into a definitive agreement and
consummating a transaction constituting an Acquisition Proposal, and shall in no
event be required to pay such Termination Fee if such consummation occurs more
than twelve months after the termination of this Agreement.
For the purposes of the foregoing, the term “Acquisition
Proposal” shall have the meaning specified in Section 12.1(b), except that
references to “20% or more” in the definition of “Acquisition Proposal” shall be
deemed to be references to “50% or more”.
(d) Except as otherwise set forth above, any payment required
pursuant to this Section 11.1 shall be made within one Business Day after
termination of this Agreement by wire transfer of immediately available funds to
an account designated by Parent.
(e) Each of Target and Parent acknowledges that the agreements
contained in this Section 11.1 are an integral part of the Transactions
and that, without these agreements, neither Parent nor Target would enter into
this Agreement. Each of Target and Parent acknowledges that the payments of the
amounts set out in this Section 11.1 are a genuine pre-estimate of the
damages, which the party entitled to such damages will suffer or incur as a
result of the event giving rise to such payment and the resultant termination of
this Agreement and accordingly are not penalties. If Target or Parent fails
promptly to pay any amount due pursuant to this Section 11.1, and, in
order to obtain such payment, Parent or Target commences a suit that results in
a judgment against Target or Parent for such payment, Target or Parent, as
applicable, shall pay to Parent or Target, as applicable, its costs and expenses
(including attorneys’ fees and expenses) in connection with such suit, together
with interest on the amount of the payment at a rate of 10% per annum. For
greater certainty, each of Target and Parent agrees that, upon any termination
of this Agreement under circumstances where Target or Parent is entitled to a
Termination Fee and such Termination Fee is paid in full, Target or Parent, as
the case may be, shall be precluded from any other remedy against the other
party at Law or in equity or otherwise (including, without limitation, an order
for specific performance), and shall not seek to obtain any recovery, judgment,
or damages of any kind, including consequential, indirect, or punitive damages,
against the other party or any of its Subsidiaries or any of their respective
directors, officers, employees, partners, managers, members, shareholders or
affiliates or their respective representatives in connection with this Agreement
or the transactions contemplated hereby, provided, however, that payment by a
party of a Termination Fee shall not be in lieu of any damages or any other
payment or remedy available (including, without limitation, an order for
specific performance) in the event of any wilful or intentional breach by such
party of any of its obligations under this Agreement.
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11.2 Notices. All notices or communications hereunder
shall be in writing (including facsimile or similar writing) addressed as
follows:
To Parent or Merger Sub:
Energy Fuels Inc.
225 Union Blvd.
Suite 600
Lakewood, Colorado 80228
Attention: Stephen P. Antony,
Chief Executive Officer
Facsimile: (303) 974-2141
With a copy (which shall not constitute
notice) to:
Dorsey & Whitney LLP
TD Canada
Trust Tower, Brookfield Place
161 Bay Street
Suite 4310
Toronto,
Ontario M5J 2S1
Attention: Richard B. Raymer
Facsimile: (416) 367-7371
And (which shall not constitute notice)
to:
Borden Ladner Gervais LLP
Scotia
Plaza
40 King Street West, 44th Floor
Toronto, Ontario M5H
3Y4
Attention: Mark Wheeler
Facsimile: (416) 361-7376
To Target:
Uranerz Energy Corporation
1701
East “E” Street
PO Box 50850
Casper, WY 82605
Attention: Glenn
Catchpole, Chief Executive Officer
Facsimile: (307) 265-8904
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
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Any such notice or communication shall be deemed given (a) when
made, if made by hand delivery, and upon confirmation of receipt, if made by
facsimile, (b) one Business Day after being deposited with a next-day courier,
postage prepaid or (c) three Business Days after being sent certified or
registered mail, return receipt requested, postage prepaid, in each case
addressed as above (or to such other address as such party may designate in
writing from time to time).
11.3 Severability. If any provision of this Agreement
shall be declared to be invalid or unenforceable, in whole or in part, such
invalidity or unenforceability shall not affect the remaining provisions hereof,
which shall remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the Transactions may be consummated as
originally contemplated to the fullest extent possible.
11.4 Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors, and assigns; provided, however, that, except
for Merger Sub, the rights of which may be assigned to another wholly owned
Subsidiary of Parent, neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation and any assignment in violation
hereof shall be null and void.
11.5 Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. All references to “dollars” or “$”
shall mean United States dollars. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation.” This Agreement shall be construed without regard
to any presumption or rule requiring construction or interpretation against the
drafting party.
11.6 Knowledge. References to “Knowledge” of Target
shall mean the actual knowledge of the executive officers or general counsel of
Target. References to “Knowledge” of Parent shall mean the actual knowledge of
the executive officers or general counsel of Parent.
11.7 Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
Agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to each party.
11.8 Entire Agreement. This Agreement, together with all
documents contemplated herein or required hereby and the Confidentiality
Agreement, represent the entire agreement of the parties with respect to the
subject matter hereof and shall supersede any and all previous contracts,
arrangements or understandings between the parties with respect to the subject
matter hereof.
11.9 Governing Law. This Agreement shall be construed,
interpreted, and governed in accordance with the laws of the state of
Nevada, without reference to rules relating to conflicts of law.
11.10 Submission to Jurisdiction. Each party to this
Agreement submits to the exclusive jurisdiction of any state or federal court
sitting in the State of Nevada in any dispute or action arising out of or
relating to this Agreement and agrees that all claims in respect of such dispute
or action may be heard and determined in any such court. Each party also agrees
not to bring any dispute or action arising out of or relating to this Agreement
in any other court. Each party agrees that a final judgment in any dispute or
action so brought will be conclusive and may be enforced by dispute or action on
the judgment or in any other manner provided at law (common, statutory or other)
or in equity. Each party waives any defense of inconvenient forum to the maintenance of any dispute
or action so brought and waives any bond, surety, or other security that might
be required of any other party with respect thereto.
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11.11 Waiver of Jury Trial. Each of Target and Parent
acknowledges and agrees that any controversy which may arise under this
Agreement is likely to involve complicated and difficult issues and, therefore,
each such party irrevocably and unconditionally waives any right it may have to
a trial by jury in respect of any legal action arising out of or relating to
this Agreement or the Transactions contemplated by this Agreement. Each of the
Target and Parent certifies and acknowledges that (i) no representative of any
other party to this Agreement has represented, expressly or otherwise, that such
other party would not seek to enforce the foregoing waiver in the event of a
legal action, (ii) such party has considered the implications of this waiver,
(iii) such party makes this waiver voluntarily, and (iv) such party has been
induced to enter into this Agreement by, among other things, the mutual waivers
and certifications of this Section 11.10.
11.12 Attorneys’ Fees. If any action at law or equity,
including an action for declaratory relief, is brought to enforce or interpret
any provision of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys’ fees and expenses from the other party, which fees
and expenses shall be in addition to any other relief which may be awarded.
11.13 No Third Party Beneficiaries. No Person other than
the parties is an intended beneficiary of this Agreement or any portion hereof.
11.14 Disclosure Letters. The disclosures made on any
disclosure letter, including the Target Disclosure Letter, with respect to any
representation or warranty, shall be deemed to be made with respect to any other
representation or warranty requiring the same or similar disclosure to the
extent that the relevance of such disclosure to other representations and
warranties is reasonably apparent from the face of the disclosure letter. The
inclusion of any matter on any disclosure letter will not be deemed an admission
by any party that such listed matter is material or that such listed matter has
or would have a Material Adverse Effect with respect to Parent or Target, as
applicable, or would otherwise be material to any party.
11.15 Amendments and Supplements. At any time before or
after approval of the matters presented in connection with the Merger by the
shareholders of Target and prior to the Effective Time, this Agreement may be
amended or supplemented in writing by Parent and Target with respect to any of
the terms contained in this Agreement, except as otherwise provided by Law;
provided, however, that following approval of this Agreement by
the shareholders of Target, there shall be no amendment or change to the
provisions hereof unless permitted by the Merger Act without further approval by
the shareholders of Target.
11.16 Extensions, Waivers, Etc. At any time prior to the
Effective Time, either party may extend the time for the performance of any of
the obligations or acts of the other party;
(a) waive any inaccuracies in the representations and
warranties of the other party contained herein or in any document delivered
pursuant hereto; or
(b) subject to the proviso of Section 11.14, waive
compliance with any of the agreements or conditions of the other party contained
herein.
Notwithstanding the foregoing, no failure or delay by Parent or
Target in exercising any right hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right hereunder. Any agreement on
the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
68
ARTICLE XII
DEFINITIONS
12.1 Defined Terms. The following terms shall have the
following meanings for the purposes of this Agreement:
(a) “Ancillary Agreement” means each Voting Agreement
and any other agreement, document or instrument to be entered into by any party
hereto in connection with the Merger, any other Transaction or this Agreement.
(b) “Acquisition Proposal” means, with respect to Target
or the Parent, any proposal or offer, or public announcement of an intention to
make a proposal or offer, to such party or its security holders from any Person
or group of Persons "acting jointly or in concert" (within the meaning of
Multilateral Instrument 62-104 – Take-Over Bids and Issuer Bids) which
constitutes, or may be reasonably expected to lead to (in either case whether in
one transaction or a series of transactions):
(i) any take-over bid, issuer bid, amalgamation, plan of
arrangement, business combination, merger, tender offer, exchange offer,
consolidation, recapitalization or reorganization resulting in any Person or
group of Persons owning 20% or more of the issued and outstanding equity or
voting interests of Target or the Parent;
(ii) any sale of assets (or any lease, long-term supply
arrangement, licence or other arrangement having the same economic effect as a
sale) of Target or the Parent representing 20% or more of the consolidated
assets (based on the fair market value thereof), revenues or earnings of Target
or the Parent and for clarity includes (but not limited to) the sale of (1) with
respect to the Target, any one of the Nichols Ranch project (and/or processing
plant), the Hank project, the Jane Dough project and (2) with respect to the
Parent, any one of the White Mesa Mill and any surrounding mineral properties
described in Parent’s latest filed annual report on Form 40-F (other than
properties described as being non-material in such annual report on Form 40-F),
the Roca Honda Project, Gas Hills project or the Sheep Mountain project; and
(iii) any sale or issuance of shares or other equity interests
(or securities convertible into or exercisable for such shares or interests) in
Target or the Parent representing 20% or more of the issued and outstanding
equity or voting interests of Target or the Parent; and
(iv) any arrangement whereby effective operating control of
Target or Parent is granted to another party or Person.
(c) “Audit” means any audit, assessment of Taxes, other
examination by any Tax Authority, proceeding or appeal of such proceeding
relating to Taxes.
69
(d) “Business Day” means a day, other than a Saturday or
Sunday, on which the principal commercial banks located in Toronto, Ontario or
Las Vegas, Nevads are open for the conduct of business.
(e) “CFIUS” means the Committee on Foreign Investment in
the United States.
(f) “CFIUS Approval” means (i) the Target and Parent
shall have received a written notification issued by CFIUS that it has
determined that (A) it lacks jurisdiction over the transaction; (B) it has
concluded its review under Section 721 and has determined that there are no
unresolved national security concerns with respect to the transaction; or (C) if
CFIUS undertakes investigation of the transaction, Parent and Target shall have
received notification that the U.S. government has concluded all action under
Section 721 and has determined that there are no unresolved national security
concerns with respect to the transaction and no Material Mitigation Measure has
been imposed on either Target or Parents by CFIUS as a condition to proceeding
with the transaction.
(g) “Code” means Internal Revenue Code of 1986, as
amended, and the Treasury Regulations promulgated thereunder.
(h) “Confidentiality Agreement” means the
confidentiality agreement between Energy Fuels Inc. and Uranerz Energy
Corporation dated June 30, 2014, as amended on December 4, 2014.
(i) “Environmental Laws” means all applicable federal,
state and local laws and regulations, as amended, relating to pollution or
protection of human health or the environment (including ambient air, surface
water, groundwater, land surface, or subsurface strata) and which are
administered, interpreted, or enforced by the United States Environmental
Protection Agency, other federal agencies, and state and local agencies with
jurisdiction over and including common law in respect of, pollution or
protection of the environment, including without limitation the Clean Air Act,
the Federal Water Pollution Control Act (also known as the Clean Water Act), the
Oil Pollution Act of 1990, the Rivers and Harbors Act of 1899, the Safe Drinking
Water Act, the Emergency Planning and Community Right-to-Know Act, the Superfund
Amendments and Reauthorization Act of 1986, the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response Compensation and
Liability Act, the Hazardous and Solid Waste Amendments Act of 1984, the Toxic
Substances Control Act, the Occupational Safety and Health Act, the Hazardous
Materials Transportation Act, the National Environmental Policy Act, the Mine
Safety and Health Act, Atomic Energy Act, Federal Land Policy and Management
Act, 1897 Organic Act, and National Historic Preservation Act, each as amended,
and other federal and applicable state, local and foreign laws and regulations
relating to emissions, discharges, releases, or threatened releases of any
Hazardous Substances, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of any
Hazardous Substances.
(j) “Exchange Act” means the United States Securities
Exchange Act of 1934, as amended.
(k) “Form F-4” means the registration statement on Form
F-4 to be filed by Parent with the SEC in order to register (i) the Parent
Common Shares issuable upon completion of the Merger, and (ii) the Parent Common
Shares issuable upon exercise of the Assumed Warrants.
70
(l) “Governmental Authority” means (i) any governmental
department, commission, board, bureau, agency, court or other instrumentality,
whether foreign or domestic, of any country, nation, republic, federation or
similar entity or any state, county, parish or municipality, jurisdiction, (ii)
any political subdivision or authority of any of the above, (iii) any
quasi-governmental or private body exercising any regulatory, expropriation or
taxing authority under or for the account of any of the foregoing, and (iv) any
self-regulatory organization or stock exchange, including the TSX and NYSE MKT.
(m) “Hazardous Substances” means any chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum, petroleum products or any substance regulated under any Environmental
Law.
(n) “Hedging Agreement” means, with respect to any
Person, any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, commodity price protection agreement, foreign exchange
protection agreement, and any other agreement or arrangement designed to protect
such Person against fluctuations in interest rates, commodity prices or foreign
exchange rates, as any such agreement is amended, supplemented or modified from
time to time.
(o) “Indebtedness” means, with respect to any Person,
(a) all indebtedness of such party or any of its Subsidiaries for the repayment
of borrowed money, whether or not represented by bonds, debentures, notes or
similar instruments, (b) all other indebtedness and obligations of such party or
any of its Subsidiaries evidenced by bonds, debentures, notes or similar
instruments, under loan agreements, security agreements, mortgages, deeds of
trust, Hedging Agreements or letter of credit reimbursement agreements, (c)
other commitments or obligations by which such party or any of its Subsidiaries
assures against loss (including contingent reimbursement obligations with
respect to letters of credit, bankers’ acceptances or similar instruments), (d)
commitments (contingent or otherwise) of such party or any of its Subsidiaries
to pay deferred purchase amounts for property or services, including all notes,
“earn-out” payments, purchase price adjustment payments and non-competition
payments and (e) guarantees or similar contingent liabilities of such party or
any of its Subsidiaries (including so called take-or-pay or keep-well
agreements) with respect to any indebtedness, obligation, claim or Liability of
any other Person.
(p) “Law” means any applicable laws, including
international, national, provincial, state, municipal and local laws, treaties,
statutes, ordinances, judgments, decrees, injunctions, writs, certificates and
orders, by-laws, rules, regulations, ordinances, or other requirements of any
Governmental Authority having the force of law or any listing rule of any
applicable stock exchange.
(q) “Liabilities” means, with respect to any Person, any
liability or obligation of such Person of any kind, character or description,
whether known or unknown, absolute or contingent, accrued or unaccrued, disputed
or undisputed, liquidated or unliquidated, secured or unsecured, joint or
several, due or to become due, vested or unvested, executory, determined,
determinable or otherwise, and whether or not the same is required to be accrued
on the financial statements of such Person.
(r) “Liens” means liens, pledges, voting agreements,
voting trusts, proxy agreements, security interests, mortgages, and other
possessory interests, conditional sale or other title retention agreements,
assessments, easements, rights of way, covenants, restrictions, rights of first
refusal by any third parties, encroachments, and other burdens, options or
encumbrances of any kind.
71
(s) “List” means the United States Environmental
Protection Agency’s National Priorities List (NPL) of Hazardous Substance Sites
or CERCLA Information System (CERCLIS) or any similar list maintained by any
state regulatory agency with respect to sites from which there has been a
release of Hazardous Substances.
(t) “Material Adverse Effect” means any effect that is,
or could reasonably be expected to be, material and adverse to the business,
condition (financial or otherwise), properties, assets (tangible or intangible),
liabilities (whether absolute, accrued, conditional or otherwise), operations or
results of operations of such party and its subsidiaries taken as a whole, other
than any effect: (i) relating to the Canadian or United States economies,
political conditions or securities markets in general; (ii) affecting the
uranium mining or milling industry or nuclear power generation industry in
general; (iii) resulting from changes in the price of uranium; (iv) relating to
a change in the market trading price of shares of Target or Parent, either (a)
related to this Agreement and the Merger or the announcement thereof or (b)
related to such a change in the market trading price primarily resulting from a
change, effect, event or occurrence excluded from this definition of Material
Adverse Effect referred to in clause (i), (ii), (iii) above, or (v), below or
(v) relating to any generally applicable change in applicable laws (other than
orders, judgments or decrees against such person or any of its subsidiaries) or
in accounting principles or standards applicable to Target or Parent;
provided, however, that the effect referred to in (i), (ii) or (v) above
does not primarily relate only to (or have the effect of primarily relating only
to) the Target, the Parent or any Subsidiary of Parent, taken as a whole, or
disproportionately adversely the Target, the Parent or any Subsidiary of Parent,
taken as a whole, compared to other companies of similar size operating in the
industry in which it and its subsidiaries operate.
(u) “Material Contract” means, with respect to a party,
any contract, arrangement, commitment or understanding (whether written or
oral), that (i) is a material contract (as defined in Item 601(b)(10) of SEC
Regulation S-K) with respect to the party to be performed after the Agreement
Date, (ii) materially restrains, limits or impedes the ability of the party or
any of its Subsidiaries or other affiliates to compete with or conduct any
business or any line of business (including (A) agreements that impose
geographic limitations on activities, (B) agreements that impose restraints on
the right to solicit employees and (C) any confidentiality agreement, area of
mutual interest or standstill agreement with any Person (or any agent thereof)
that contains any exclusivity or standstill provisions that are or will be
binding on a party or any of its Subsidiaries or other affiliates (including,
after the Effective Time,)), (iii) contains a provision of the type commonly
referred to as a “most favored nation” provision for the benefit of a party
other than the party or its Subsidiaries, (iv) contains a put, call or other
right of acquisition or disposition pursuant to which the party or any of its
Subsidiaries could be required to purchase or sell, as applicable, any equity
interests (including licensing or leasehold interests) of any Person or assets
that have a market value or purchase price of more than $100,000, (v) entitles
any current or former officer, employee, director or other independent
contractor of the a party or any Subsidiary to any change in control payment or
benefit, transaction bonus, severance pay or similar benefit, (vi) is a
partnership or joint venture relating to the formation, creation, operation,
management or control of any material partnership or joint venture, or (vii)
relates to Indebtedness in excess of $100,000 of Target, or (viii) relates to
the sale of uranium concentrates where the value of the uranium concentrates to
be sold is in excess of $100,000.
(v) “Material Mitigation Measure" means any mitigation
measure proposed by CFIUS that (i) requires Parent to hold its ownership
interests in Target indirectly, such as through proxy holders or in a voting
trust; (ii) materially interferes with Parent’s ability to participate in the
management of Target; (iii) requires the exclusion of any material asset from
the scope of the transaction or Parent or Target to dispose of any material
portion of its businesses, operations, assets or product lines (or any combination thereof); or (iv)
otherwise is reasonably likely to result in a Material Adverse Effect on Target
or Parent.
72
(w) “NI 43-101” means National Instrument 43-101 –
Standards of Disclosure for Mineral Projects adopted by the Canadian
Securities Administrators.
(x) “Parent Common Shares” means common shares in the
capital of Parent, no par value, as constituted on the Agreement Date.
(y) “Parent Material Subsidiaries” means each of Energy
Fuels Holdings Corp., Titan Uranium Inc., Uranium Power Corp., Energy Fuels
Wyoming Inc., Magnum Uranium Corp., Magnum Mineral USA Corp., Colorado Plateau
Partners LLC, EFR White Canyon Corp., EFR White Mesa LLC, EFR Arizona Strip LLC,
EFR Henry Mountains LLC, EFR Colorado Plateau LLC, Energy Fuels Resources (USA)
Inc., and Strathmore Minerals Corp., Strathmore Resources (US) Ltd., Roca Honda
Resources LLC, Wyoming Gold Mining Company, CK Mining Corp., Saratoga Gold
Company Ltd.
(z) “Permitted Lien” means (i) Liens for Taxes and other
governmental charges and assessments (except assessments for public improvements
levied, pending or deferred against the Real Property) that are not yet due and
payable or which are being contested in good faith by appropriate proceedings
(provided required payments have been made in connection with any such contest),
(ii) Liens of carriers, warehousemen, mechanics’ and materialmen and other like
Liens arising in the ordinary course of business (provided lien statements have
not been filed as of the Closing Date), (iii) easements, rights of way and
restrictions, zoning ordinances and other similar Liens affecting the Real
Property and which do not adversely affect title to, detract from the value of,
or impair the existing or proposed use of, the property affected by such lien or
imperfection, (iv) statutory Liens in favor of lessors arising in connection
with any property leased to Target or any Subsidiary and (v) liens granted by
Uranerz under the Wyoming Bond Financing Agreement, including the mortgage,
assignment of revenues, security agreement, fixture filing and financing
statement between Target, as mortgagor, and UMB Bank, n.a., as trustee and
mortgagee dated as of November 26, 2013 with respect to the $20,000,000 Johnson
County, Wyoming Taxable Industrial Development Revenue Bond (Uranerz Energy
Corporation Project) Series 2013.
(aa) “Person” means an individual, a corporation, a
limited liability company, a partnership, an association, a trust or any other
entity or organization, including any Governmental Authority.
(bb) “Section 721” means Section 721 of the Defense
Production Act of 1950, as amended by the Foreign Investment and National
Security Act of 2007.
(cc) “Securities Act” means the United States Securities
Act of 1933, as amended;
(dd) “Subsidiary” means, with respect to any Person,
another Person in which such first Person owns, directly or indirectly, an
amount of the voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its board of
directors or other governing body (or, if there are no such voting interests,
fifty percent (50%) or more of the equity interests of such Person).
(ee) “Superior Proposal” means a bona fide Acquisition
Proposal that is made in writing after the date hereof and did not result from
the breach of Section 7.2 by Target, Parent, or their Representatives and that the board of directors of
Target or the board of directors of Parent determines in good faith after
consultation with its legal and financial advisors:
73
(i) is made to Target (or Parent) or all the Target common
shareholders (or Parent common shareholders) and in compliance with applicable
securities Laws, and is made for all or substantially all of the assets of
Target or Parent or all Target shares, or Parent shares not owned by the person
making the Acquisition Proposal;
(ii) that funds or other consideration necessary for the
consummation of such Acquisition Proposal are available to ensure that the third
party will have the funds or other consideration necessary for the consummation
of the Acquisition Proposal;
(iii) if consummated in accordance with its terms (but not
assuming away any risk of non-completion), would result in a transaction
financially superior for Target or Parent and its security holders than the
transaction contemplated by this Agreement, taking into account the form and
amount of consideration, the likelihood and timing of completion and the other
terms thereof (after due consideration of the legal, financial, regulatory and
other aspects of such proposal and other factors deemed relevant by the board of
directors of Target or the board of directors of Parent);
(iv) is reasonably capable of completion in accordance with its
terms taking into account all legal, financial, regulatory and other aspects of
such Acquisition Proposal;
(v) is not subject to approval by the board of directors or the
equivalent of the third party, is not subject to the third party receiving a
fairness opinion or similar evaluation, and is not subject to a due diligence
condition; and
(vi) that the taking of action in respect of such Acquisition
Proposal is necessary for the board of directors of Target or board of directors
of Parent in the discharge of its fiduciary duties under applicable Laws.
(ff) “Target Book-Entry Shares” means uncertificated
book-entry Target Common Shares outstanding immediately prior to the Effective
Time;
(gg) “Target Common Shares” means shares of common stock
of Target, $0.001 par value, as constituted on the Agreement Date;
(hh) “Target Physical Shares” means Target Common Shares
represented by definitive physical share certificates immediately prior to the
Effective Time;
(ii) “Tax Authority” means the Internal Revenue Service
and any other domestic or foreign Governmental Authority responsible for the
administration of any Taxes.
(jj) “Tax Returns” means all federal, state, local and
foreign tax returns, declarations, statements, reports, schedules, forms and
information returns and any amended Tax Return relating to Taxes.
(kk) “Taxes” means all federal, state, local and foreign
taxes, and other assessments of a similar nature (whether imposed directly or
through withholding), including any interest, additions to tax, or penalties applicable thereto and including
any obligations to indemnify or otherwise assume or succeed to the Tax liability
of any other Person.
74
(ll) “Wyoming Bond Financing Agreement” means the
financing agreement between Target and Johnson County, Wyoming dated as of
November 2, 2013 with respect to the $20,000,000 Johnson County, Wyoming Taxable
Industrial Development Revenue Bond (Uranerz Energy Corporation Project) Series
2013.
12.2 Additional Defined Terms.
| Term |
Section |
| 2013Parent Balance Sheet |
5.7 |
| 2013Target Balance Sheet |
4.7 |
| Acceptable Confidentiality Agreement |
7.2(e)(ii)(A) |
| Adverse Recommendation Change |
7.2(f) |
| Agreement |
Preamble |
| Agreement Date |
Preamble |
| Articles of Merger |
1.2 |
| Assumed Warrants |
3.3(d) |
| Canadian Securities Regulatory Authorities
|
5.5(b) |
| Cantor |
5.27 |
| Closing Date |
3.5 |
| Closing |
3.5 |
| Corporations Act |
2.1 |
| Dissenting Shares |
3.4(a) |
| EDGAR |
Preamble to Article IV
|
| Effective Time |
1.2 |
| Enforceability Exception |
4.3 |
| Exchange Agent |
3.2(a) |
| Exchange Fund |
3.2(a) |
| Exchange Instructions |
3.2(b) |
| Exchange Ratio |
3.1(b) |
| Euro Pacific |
4.22 |
| GAAP |
4.6 |
| Haywood |
4.22 |
| HSR Act |
4.4(b) |
| IFRS |
5.6 |
| Knowledge |
11.6 |
| Match Period |
7.2(f)(iv) |
| Merger |
Preamble |
| Merger Act |
1.1 |
| Merger Sub |
Preamble |
| Modified Superior Proposal |
10.1(i) |
| NRS |
1.1 |
| NYSE MKT |
1.3 |
75
| Term |
Section |
| Parent |
Preamble |
| Parent 43-101 Technical Reports |
5.16(k) |
| Parent Benefit Plan |
5.12(a) |
| Parent Debentures |
5.2(a) |
| Parent Disclosure Letter |
Preamble to Article V
|
| Parent ERISA Affiliate |
5.12(a) |
| Parent Fee Property |
5.16(a) |
| Parent Improvements |
5.16(f) |
| Parent Intellectual Property |
5.25 |
| Parent Listed Personal Property |
5.16(f) |
| Parent Meeting |
7.13 |
| Parent MIC |
7.13 |
| Parent Mining Claims |
5.16(a) |
| Parent Options |
5.2(a) |
| Parent Parties |
Preamble |
| Parent Permits |
5.14 |
| Parent Preferred Shares |
5.2(a) |
| Parent Property Contracts |
5.16(a) |
| Parent Real Property |
5.16(a) |
| Parent Rights Plan |
5.2(a) |
| Parent SEC Reports |
5.5(a) |
| Parent SEDAR Reports |
5.5(b) |
| Parent Shareholders’ Approval |
5.18 |
| Parent Stock Option Plan |
5.2(a) |
| Parent Supplemental Disclosures |
7.10 |
| Parent Termination Fee |
11.1(c) |
| Parent Voting Agreements |
Preamble |
| Parent Warrants |
5.2(a) |
| Parent Water Rights |
5.16(e) |
| PCBs |
4.13(e) |
| Potential Acquisition Proposal |
7.2(d) |
| Proxy Statement/Prospectus |
4.19 |
| Representatives |
7.2(a) |
| Roth |
5.21 |
| Sarbanes-Oxley Act |
4.5(c) |
| SEC |
4.4(b) |
| SEDAR |
Preamble to Article IV
|
| September 30, 2014 Parent Balance Sheet |
5.7 |
| September 30, 2014 Target Balance Sheet |
4.7 |
| Substituted Options |
3.3(a) |
| Superior Proposal Notice |
7.2(f)(iii) |
| Surviving Entity |
1.1 |
| Target |
Preamble |
| Target 43-101 Technical Reports |
4.16(k) |
| Target Benefit Plan |
4.12(a) |
| Target Disclosure Letter |
Preamble to Article IV |
| Target ERISA Affiliate |
4.12(a) |
| Target Fee Property |
4.16(a) |
| Target Improvements |
4.16(f) |
| Target Intellectual Property |
4.20 |
76
| Term |
Section |
| Target Listed Personal Property |
4.16(f) |
| Target Meeting |
7.8 |
| Target Mining Claims |
4.16(a) |
| Target Permits |
4.14 |
| Target Preferred Shares |
4.2(a) |
| Target Property Contracts |
4.16(a) |
| Target Real Property |
4.16(a) |
| Target Rights Plan |
4.2(a) |
| Target SEC Reports |
4.5(a) |
| Target SEDAR Reports |
4.5(b) |
| Target Shareholders’ Approval |
4.18 |
| Target Shareholder Approvals |
4.18 |
| Target Stock Option |
3.3(a) |
| Target Stock Option Plan |
3.3(a) |
| Target Supplemental Disclosures |
7.10 |
| Target Termination Fee |
11.1(b) |
| Target Voting Agreements |
Preamble |
| Target Warrants |
3.3(b) |
| Target Warrant Indentures |
3.3(b) |
| Termination Date |
10.1(b) |
| Transactions |
3.5 |
| Unaffiliated Shareholders’ Approval |
4.18 |
| Voting Agreements |
Preamble |
| WARN Act |
6.1(s) |
| Water Rights |
4.16(e)
|
[SIGNATURE PAGE FOLLOWS]
77
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
| ENERGY FUELS INC. |
| |
|
| |
|
| By: |
/s/
Stephen P. Antony |
| Name: |
Stephen P. Antony |
| Title: |
Chief Executive Officer |
| |
|
| |
|
| EFR NEVADA CORP. |
| |
|
| |
|
| By: |
/s/ Stephen P. Antony |
| Name: |
Stephen P. Antony |
| Title: |
President |
| |
|
| |
|
| URANERZ ENERGY CORPORATION |
| |
|
| |
|
| By: |
/s/ Glenn Catchpole |
| Name: |
Glenn Catchpole |
| Title: |
Chief Executive Officer
|
EXHIBIT A-1
Signatories to Target Voting Agreements
| Peter W. Bell |
| Glenn Catchpole |
| Arnold J. Dyck |
| Paul Goranson |
| Dennis Higgs |
| Doug Hirschman |
| Dr. Gerhard F. Kirchner |
| Bruce Larson |
| Benjamin D. Leboe |
| Paul Saxton |
| Glenda Thomas |
| Mike Thomas |
EXHIBIT A-2
Signatories to Parent Voting Agreements
| Stephen P. Antony |
| J. Birks Bovaird |
| Paul A. Carroll |
| David C. Frydenlund |
| Larry Goldberg |
| Mark Goodman |
| Bruce Hansen |
| Ron F. Hochstein |
| Tae Hwan Kim |
| Richard J. Patricio |
| Harold R. Roberts |
| Daniel G. Zang |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Bruce D. Hansen |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
|
|
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1
shall prevent a Securityholder who is a member of the board of directors of EFI
or is a senior officer of EFI from engaging, in the Securityholder’s capacity as
a director or senior officer of EFI, in discussions or negotiations with a
person in response to an Acquisition Proposal in circumstances where EFI is
permitted by Section 7.2 of the Merger Agreement to engage in such discussions
or negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and
warrants to the Securityholder as follows and acknowledges that the
Securityholder is relying upon such representations and warranties in connection
with entering into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date;provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
|
|
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless otherwise expressly
stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents
to the disclosure of the substance of this Support Agreement in any press
release or any circular relating to the Merger and to the filing of this Support
Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement shall
be binding upon and shall enure to the benefit of and be enforceable by each of
the parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and
the rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence
of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to
the address set forth opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[• ] |
|
|
|
|
|
|
|
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Nevada, without giving effect to any principles of
conflict of laws thereof which would result in the application of the laws of
any other jurisdiction, and all actions and proceedings arising out of or
relating to this Support Agreement shall be heard and determined exclusively in
the courts of the State of Nevada.
4.14 The Securityholder
recognizes and acknowledges that this Support Agreement is an integral part of
Uranerz entering into the Merger Agreement, and that Uranerz would not
contemplate proceeding with entering into the Merger Agreement unless this
Support Agreement was entered into by the Securityholder, and that a breach by
the Securityholder of any covenants or other commitments contained in this
Support Agreement will cause Uranerz to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, the Securityholder
agrees that, in the event of any such breach, Uranerz shall be entitled to the
remedy of specific performance of such covenants or commitments and preliminary
and permanent injunctive and other equitable relief in addition to any other
remedy to which they may be entitled, at law or in equity, and the
Securityholder further agrees to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
URANERZ ENERGY CORPORATION
| |
By: |
(signed) “Glenn Catchpole” |
| |
|
Name: |
Glenn Catchpole |
| |
|
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of January, 2015.
| Address for Notice: |
Name of Securityholder: |
|
|
| 22284 Anasazi Way |
Bruce D. Hansen |
|
|
| Golden, CO 80401 |
Signature: |
| |
|
| |
|
| |
|
| |
(signed) “Bruce D. Hansen”
|
| |
|
Number of
Convertible |
| Registered or |
Number of |
Securities |
| Beneficial Holder |
Common
Shares |
Warrants
|
Options
|
| Bruce D. Hansen |
2,600 |
1,000 |
52,200 |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
2,600 |
1,000 |
52,200 |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
David C. Frydenlund |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
|
|
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1
shall prevent a Securityholder who is a member of the board of directors of EFI
or is a senior officer of EFI from engaging, in the Securityholder’s capacity as
a director or senior officer of EFI, in discussions or negotiations with a
person in response to an Acquisition Proposal in circumstances where EFI is
permitted by Section 7.2 of the Merger Agreement to engage in such discussions
or negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and
warrants to the Securityholder as follows and acknowledges that the
Securityholder is relying upon such representations and warranties in connection
with entering into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
|
|
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement,
unless otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents
to the disclosure of the substance of this Support Agreement in any press
release or any circular relating to the Merger and to the filing of this Support
Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement shall
be binding upon and shall enure to the benefit of and be enforceable by each of
the parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and
the rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence
of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address
set forth opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[• ] |
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement
shall be governed in all respects, including validity, interpretation and
effect, by the laws of the State of Nevada, without giving effect to any
principles of conflict of laws thereof which would result in the application of
the laws of any other jurisdiction, and all actions and proceedings arising out
of or relating to this Support Agreement shall be heard and determined
exclusively in the courts of the State of Nevada.
4.14 The Securityholder
recognizes and acknowledges that this Support Agreement is an integral part of
Uranerz entering into the Merger Agreement, and that Uranerz would not
contemplate proceeding with entering into the Merger Agreement unless this
Support Agreement was entered into by the Securityholder, and that a breach by
the Securityholder of any covenants or other commitments contained in this
Support Agreement will cause Uranerz to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, the Securityholder
agrees that, in the event of any such breach, Uranerz shall be entitled to the
remedy of specific performance of such covenants or commitments and preliminary
and permanent injunctive and other equitable relief in addition to any other
remedy to which they may be entitled, at law or in equity, and the
Securityholder further agrees to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
URANERZ ENERGY CORPORATION
| |
By: |
(signed) “Glenn Catchpole” |
| |
|
Name: |
Glenn Catchpole |
| |
|
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of January, 2015.
| Address for Notice: |
Name of Securityholder: |
|
|
| 225 Union Blvd. Suite 600 |
David C. Frydenlund |
|
|
| Lakewood CO 80228 USA |
Signature: |
| |
|
| |
|
| |
(signed) “ David C. Frydenlund”
|
| |
|
Number of Convertible
|
| Registered or |
Number of |
Securities
|
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| David C. |
9,837 |
1,786 |
35,000 |
| Frydenlund |
|
|
|
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
9,837 |
1,786 |
35,000 |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
J. Birks Bovaird |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, |
- 3 -
| |
|
|
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1
shall prevent a Securityholder who is a member of the board of directors of EFI
or is a senior officer of EFI from engaging, in the Securityholder’s capacity as
a director or senior officer of EFI, in discussions or negotiations with a
person in response to an Acquisition Proposal in circumstances where EFI is
permitted by Section 7.2 of the Merger Agreement to engage in such discussions
or negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and
warrants to the Securityholder as follows and acknowledges that the
Securityholder is relying upon such representations and warranties in connection
with entering into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
|
|
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement,
unless otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents
to the disclosure of the substance of this Support Agreement in any press
release or any circular relating to the Merger and to the filing of this Support
Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement shall
be binding upon and shall enure to the benefit of and be enforceable by each of
the parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and
the rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence
of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address
set forth opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[• ] |
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Nevada, without giving effect to any principles of
conflict of laws thereof which would result in the application of the laws of
any other jurisdiction, and all actions and proceedings arising out of or
relating to this Support Agreement shall be heard and determined exclusively in
the courts of the State of Nevada.
4.14 The Securityholder
recognizes and acknowledges that this Support Agreement is an integral part of
Uranerz entering into the Merger Agreement, and that Uranerz would not
contemplate proceeding with entering into the Merger Agreement unless this
Support Agreement was entered into by the Securityholder, and that a breach by
the Securityholder of any covenants or other commitments contained in this
Support Agreement will cause Uranerz to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, the Securityholder
agrees that, in the event of any such breach, Uranerz shall be entitled to the
remedy of specific performance of such covenants or commitments and preliminary
and permanent injunctive and other equitable relief in addition to any other
remedy to which they may be entitled, at law or in equity, and the
Securityholder further agrees to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
URANERZ ENERGY CORPORATION
| |
By: |
(signed) “Glenn Catchpole” |
| |
|
Name: |
Glenn Catchpole |
| |
|
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of January, 2015.
| Address for Notice: |
Name of Securityholder: |
| |
|
| 2 Toronto Street, Suite 500 |
|
| |
|
| Toronto, Ontario Canada |
J. Birks Bovaird |
|
|
| M5C 2B6 |
Signature: |
| |
|
| |
|
| |
(signed) “J. Birks Bovaird”
|
| |
|
Number of
Convertible |
| Registered or |
Number of |
Securities |
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| J. Birks Bovaird |
5,516 |
1,177 |
52,200 |
| RRSP |
36 |
|
|
| |
|
|
|
| |
|
|
|
| Total: |
5,552 |
1,177 |
52,200 |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Daniel G. Zang |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
|
|
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1
shall prevent a Securityholder who is a member of the board of directors of EFI
or is a senior officer of EFI from engaging, in the Securityholder’s capacity as
a director or senior officer of EFI, in discussions or negotiations with a
person in response to an Acquisition Proposal in circumstances where EFI is
permitted by Section 7.2 of the Merger Agreement to engage in such discussions
or negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and
warrants to the Securityholder as follows and acknowledges that the
Securityholder is relying upon such representations and warranties in connection
with entering into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
|
|
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement,
unless otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents
to the disclosure of the substance of this Support Agreement in any press
release or any circular relating to the Merger and to the filing of this Support
Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement shall
be binding upon and shall enure to the benefit of and be enforceable by each of
the parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and
the rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence
of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address
set forth opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[• ] |
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Nevada, without giving effect to any principles of
conflict of laws thereof which would result in the application of the laws of
any other jurisdiction, and all actions and proceedings arising out of or
relating to this Support Agreement shall be heard and determined exclusively in
the courts of the State of Nevada.
4.14 The Securityholder
recognizes and acknowledges that this Support Agreement is an integral part of
Uranerz entering into the Merger Agreement, and that Uranerz would not
contemplate proceeding with entering into the Merger Agreement unless this
Support Agreement was entered into by the Securityholder, and that a breach by
the Securityholder of any covenants or other commitments contained in this
Support Agreement will cause Uranerz to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, the Securityholder
agrees that, in the event of any such breach, Uranerz shall be entitled to the
remedy of specific performance of such covenants or commitments and preliminary
and permanent injunctive and other equitable relief in addition to any other
remedy to which they may be entitled, at law or in equity, and the
Securityholder further agrees to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
URANERZ ENERGY CORPORATION
| |
By: |
(signed) “Glenn Catchpole” |
| |
|
Name: |
Glenn Catchpole |
| |
|
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of January, 2015.
| Address for Notice: |
Name of Securityholder: |
|
|
| 225 Union Blvd., Suite 600 |
Daniel G. Zang |
|
|
| Lakewood CO 80228 USA |
Signature: |
| |
|
| |
|
| |
(signed) “Daniel G. Zang”)
|
| |
|
Number of Convertible
|
| Registered or |
Number of |
Securities
|
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| Daniel G. Zang |
714 |
357 |
32,000 |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
714 |
357 |
32,000 |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Harold R. Roberts |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
|
|
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1
shall prevent a Securityholder who is a member of the board of directors of EFI
or is a senior officer of EFI from engaging, in the Securityholder’s capacity as
a director or senior officer of EFI, in discussions or negotiations with a
person in response to an Acquisition Proposal in circumstances where EFI is
permitted by Section 7.2 of the Merger Agreement to engage in such discussions
or negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and
warrants to the Securityholder as follows and acknowledges that the
Securityholder is relying upon such representations and warranties in connection
with entering into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
|
| (e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement,
unless otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents
to the disclosure of the substance of this Support Agreement in any press
release or any circular relating to the Merger and to the filing of this Support
Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement shall
be binding upon and shall enure to the benefit of and be enforceable by each of
the parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and
the rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence
of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address
set forth opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[• ] |
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Nevada, without giving effect to any principles of
conflict of laws thereof which would result in the application of the laws of
any other jurisdiction, and all actions and proceedings arising out of or
relating to this Support Agreement shall be heard and determined exclusively in
the courts of the State of Nevada.
4.14 The Securityholder
recognizes and acknowledges that this Support Agreement is an integral part of
Uranerz entering into the Merger Agreement, and that Uranerz would not
contemplate proceeding with entering into the Merger Agreement unless this
Support Agreement was entered into by the Securityholder, and that a breach by
the Securityholder of any covenants or other commitments contained in this
Support Agreement will cause Uranerz to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, the Securityholder
agrees that, in the event of any such breach, Uranerz shall be entitled to the
remedy of specific performance of such covenants or commitments and preliminary
and permanent injunctive and other equitable relief in addition to any other
remedy to which they may be entitled, at law or in equity, and the
Securityholder further agrees to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
URANERZ ENERGY CORPORATION
| |
By: |
(signed) “Glenn Catchpole” |
| |
|
Name: |
Glenn Catchpole |
| |
|
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of January, 2015.
| Address for Notice: |
Name of Securityholder: |
|
|
| 225 Union Blvd., Suite 600 |
Harold R. Roberts |
|
|
| Lakewood CO 80228 USA |
Signature: |
| |
|
| |
|
| |
(signed) “Harold R. Roberts”
|
| |
|
Number of Convertible
|
| Registered or |
Number of |
Securities
|
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| Harold R. Roberts |
4,143 |
1,071 |
42,000 |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
4,143 |
1,071 |
42,000 |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Larry Goldberg |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
|
|
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1
shall prevent a Securityholder who is a member of the board of directors of EFI
or is a senior officer of EFI from engaging, in the Securityholder’s capacity as
a director or senior officer of EFI, in discussions or negotiations with a
person in response to an Acquisition Proposal in circumstances where EFI is
permitted by Section 7.2 of the Merger Agreement to engage in such discussions
or negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and
warrants to the Securityholder as follows and acknowledges that the
Securityholder is relying upon such representations and warranties in connection
with entering into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
|
|
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement,
unless otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents
to the disclosure of the substance of this Support Agreement in any press
release or any circular relating to the Merger and to the filing of this Support
Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement shall
be binding upon and shall enure to the benefit of and be enforceable by each of
the parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and
the rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence
of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address
set forth opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[• ] |
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Nevada, without giving effect to any principles of
conflict of laws thereof which would result in the application of the laws of
any other jurisdiction, and all actions and proceedings arising out of or
relating to this Support Agreement shall be heard and determined exclusively in
the courts of the State of Nevada.
4.14 The Securityholder
recognizes and acknowledges that this Support Agreement is an integral part of
Uranerz entering into the Merger Agreement, and that Uranerz would not
contemplate proceeding with entering into the Merger Agreement unless this
Support Agreement was entered into by the Securityholder, and that a breach by
the Securityholder of any covenants or other commitments contained in this
Support Agreement will cause Uranerz to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, the Securityholder
agrees that, in the event of any such breach, Uranerz shall be entitled to the
remedy of specific performance of such covenants or commitments and preliminary
and permanent injunctive and other equitable relief in addition to any other
remedy to which they may be entitled, at law or in equity, and the
Securityholder further agrees to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
URANERZ ENERGY CORPORATION
| |
By: |
(signed) “Glenn Catchpole” |
| |
|
Name: |
Glenn Catchpole |
| |
|
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of January, 2015.
| Address for Notice: |
Name of Securityholder: |
| |
|
| 15 Gormley Avenue |
|
| |
|
| Toronto, Ontario |
Larry Goldberg |
|
|
| M4V 1Y9 |
Signature: |
| |
|
| |
|
| |
(signed) “Larry Goldberg
|
| |
|
Number of
Convertible |
| Registered or |
Number of |
Securities |
| Beneficial Holder |
Common
Shares |
Warrants
|
Options
|
| Larry Goldberg |
|
|
47,200 |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
|
|
47,200 |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Mark Goodman |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
- 2 -
1.2 The Securityholder
hereby covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of EFI or is
a senior officer of EFI from engaging, in the Securityholder’s capacity as a
director or senior officer of EFI, in discussions or negotiations with a person
in response to an Acquisition Proposal in circumstances where EFI is permitted
by Section 7.2 of the Merger Agreement to engage in such discussions or
negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and warrants to
the Securityholder as follows and acknowledges that the Securityholder is
relying upon such representations and warranties in connection with entering
into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
| 3.1 |
This Support Agreement will automatically terminate on
the first to occur of: |
| |
|
|
|
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
|
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
|
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
|
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[●]
|
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement (together
with all other documents and instruments referred to herein) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of Uranerz entering
into the Merger Agreement, and that Uranerz would not contemplate proceeding
with entering into the Merger Agreement unless this Support Agreement was
entered into by the Securityholder, and that a breach by the Securityholder of
any covenants or other commitments contained in this Support Agreement will
cause Uranerz to sustain injury for which it would not have an adequate remedy
at law for money damages. Therefore, the Securityholder agrees that, in the
event of any such breach, Uranerz shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and permanent
injunctive and other equitable relief in addition to any other remedy to which
they may be entitled, at law or in equity, and the Securityholder further agrees
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| URANERZ ENERGY CORPORATION |
| |
|
|
| By: |
(signed) “Glenn Catchpole” |
| |
Name: |
Glenn Catchpole |
| |
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of
January, 2015.
| Address for Notice: |
|
Name of Securityholder: |
| |
|
|
| |
|
Mark Goodman |
| |
|
|
| |
|
Signature: |
| |
|
|
| |
|
(signed) “Mark Goodman”
|
| |
|
Number of Convertible
|
| Registered or |
Number of |
Securities
|
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| |
|
|
42,400 |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
|
|
42,400
|
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Ron F. Hochstein |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of EFI or is
a senior officer of EFI from engaging, in the Securityholder’s capacity as a
director or senior officer of EFI, in discussions or negotiations with a person
in response to an Acquisition Proposal in circumstances where EFI is permitted
by Section 7.2 of the Merger Agreement to engage in such discussions or
negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and warrants to
the Securityholder as follows and acknowledges that the Securityholder is
relying upon such representations and warranties in connection with entering
into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[●]
|
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of Uranerz entering
into the Merger Agreement, and that Uranerz would not contemplate proceeding
with entering into the Merger Agreement unless this Support Agreement was
entered into by the Securityholder, and that a breach by the Securityholder of
any covenants or other commitments contained in this Support Agreement will
cause Uranerz to sustain injury for which it would not have an adequate remedy
at law for money damages. Therefore, the Securityholder agrees that, in the
event of any such breach, Uranerz shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and permanent
injunctive and other equitable relief in addition to any other remedy to which
they may be entitled, at law or in equity, and the Securityholder further agrees
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| URANERZ ENERGY CORPORATION |
| |
|
|
| By: |
(signed) “Glenn Catchpole” |
| |
Name: |
Glenn Catchpole |
| |
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of
January, 2015.
| Address for Notice: |
Name of Securityholder: |
| |
|
| 2000 – 885 West Georgia Street |
|
| |
Ron F. Hochstein |
| Vancouver, BC V6C 3E8 |
|
| |
Signature: |
| |
|
| |
(signed) “ Ron F. Hochstein”
|
| |
|
Number of Convertible
|
| Registered or |
Number of |
Securities
|
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| Ron F. Hochstein |
23,368 |
1,310 |
40,000 |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
23,368 |
1,310 |
40,000
|
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Stephen P. Antony |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of EFI or is
a senior officer of EFI from engaging, in the Securityholder’s capacity as a
director or senior officer of EFI, in discussions or negotiations with a person
in response to an Acquisition Proposal in circumstances where EFI is permitted
by Section 7.2 of the Merger Agreement to engage in such discussions or
negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and warrants to
the Securityholder as follows and acknowledges that the Securityholder is
relying upon such representations and warranties in connection with entering
into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one
counterpart.
- 8 -
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[●] |
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E
4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Nevada, without giving effect to any principles of
conflict of laws thereof which would result in the application of the laws of
any other jurisdiction, and all actions and proceedings arising out of or
relating to this Support Agreement shall be heard and determined exclusively in
the courts of the State of Nevada.
4.14 The Securityholder recognizes
and acknowledges that this Support Agreement is an integral part of Uranerz
entering into the Merger Agreement, and that Uranerz would not contemplate
proceeding with entering into the Merger Agreement unless this Support Agreement
was entered into by the Securityholder, and that a breach by the Securityholder
of any covenants or other commitments contained in this Support Agreement will
cause Uranerz to sustain injury for which it would not have an adequate remedy
at law for money damages. Therefore, the Securityholder agrees that, in the
event of any such breach, Uranerz shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and permanent
injunctive and other equitable relief in addition to any other remedy to which
they may be entitled, at law or in equity, and the Securityholder further agrees
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| URANERZ ENERGY CORPORATION |
| |
|
|
| By: |
(signed) “Glenn Catchpole” |
| |
Name: |
Glenn Catchpole |
| |
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of
January, 2015.
| Address for Notice: |
Name of Securityholder: |
| |
|
| 225 Union Blvd. Suite 600 |
|
| |
Stephen P. Antony |
| Lakewood CO 80228 USA |
|
| |
Signature: |
| |
|
| |
(signed) “Stephen P. Antony”
|
| |
|
Number of Convertible
|
| Registered or |
Number of |
Securities
|
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| Stephen P. Antony |
19,257 |
5,200 |
110,200 |
| Simplified Pension |
700 |
|
|
| Benefit Account |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
19,957 |
5,200 |
110,200 |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Paul A. Carroll |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of EFI or is
a senior officer of EFI from engaging, in the Securityholder’s capacity as a
director or senior officer of EFI, in discussions or negotiations with a person
in response to an Acquisition Proposal in circumstances where EFI is permitted
by Section 7.2 of the Merger Agreement to engage in such discussions or
negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and warrants to
the Securityholder as follows and acknowledges that the Securityholder is
relying upon such representations and warranties in connection with entering
into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall become
effective in respect of the Securityholder upon both: (a) execution and delivery
thereof by the Securityholder; and (b) the execution and delivery of the Merger
Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[●]
|
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Nevada, without giving effect to any principles of
conflict of laws thereof which would result in the application of the laws of
any other jurisdiction, and all actions and proceedings arising out of or
relating to this Support Agreement shall be heard and determined exclusively in
the courts of the State of Nevada.
4.14 The Securityholder recognizes
and acknowledges that this Support Agreement is an integral part of Uranerz
entering into the Merger Agreement, and that Uranerz would not contemplate
proceeding with entering into the Merger Agreement unless this Support Agreement
was entered into by the Securityholder, and that a breach by the Securityholder
of any covenants or other commitments contained in this Support Agreement will
cause Uranerz to sustain injury for which it would not have an adequate remedy
at law for money damages. Therefore, the Securityholder agrees that, in the
event of any such breach, Uranerz shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and permanent
injunctive and other equitable relief in addition to any other remedy to which
they may be entitled, at law or in equity, and the Securityholder further agrees
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| URANERZ ENERGY CORPORATION |
| |
|
|
| By: |
(signed) “Glenn Catchpole” |
| |
Name: |
Glenn Catchpole |
| |
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of
January, 2015.
| Address for Notice: |
Name of Securityholder: |
| |
|
| 917 – 211 Queen’s Quay Blvd West |
|
| |
Paul A. Carroll |
| Toronto, Ontario M5J 2M6 |
|
| |
Signature: |
| |
|
| |
(signed) “Paul A. Carroll”
|
| |
|
Number of Convertible
|
| Registered or |
Number of |
Securities
|
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| Paul A. Carroll |
|
|
54,200 |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
|
|
54,200
|
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Richard J. Patricio |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of EFI or is
a senior officer of EFI from engaging, in the Securityholder’s capacity as a
director or senior officer of EFI, in discussions or negotiations with a person
in response to an Acquisition Proposal in circumstances where EFI is permitted
by Section 7.2 of the Merger Agreement to engage in such discussions or
negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and warrants to
the Securityholder as follows and acknowledges that the Securityholder is
relying upon such representations and warranties in connection with entering
into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[●]
|
|
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes
and acknowledges that this Support Agreement is an integral part of Uranerz
entering into the Merger Agreement, and that Uranerz would not contemplate
proceeding with entering into the Merger Agreement unless this Support Agreement
was entered into by the Securityholder, and that a breach by the Securityholder
of any covenants or other commitments contained in this Support Agreement will
cause Uranerz to sustain injury for which it would not have an adequate remedy
at law for money damages. Therefore, the Securityholder agrees that, in the
event of any such breach, Uranerz shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and permanent
injunctive and other equitable relief in addition to any other remedy to which
they may be entitled, at law or in equity, and the Securityholder further agrees
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| URANERZ ENERGY CORPORATION |
| |
|
|
| By: |
(signed) “Glenn Catchpole” |
| |
Name: |
Glenn Catchpole |
| |
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of
January, 2015.
| Address for Notice: |
Name of Securityholder: |
| |
|
| 1216 Whiteoaks Ave. |
|
| |
Richard J. Patricio |
| Mississauga, Ontario |
|
| |
|
| Canada L5J 3B7 |
Signature: |
| |
|
| |
(signed) “Richard J. Patricio”
|
| |
|
Number of Convertible
|
| Registered or |
Number of |
Securities
|
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| Richard J. Patricio |
7,720 |
2,500 |
53,320 |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
7,720 |
2,500 |
53,320
|
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Tae Hwan Kim |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Parent Meeting to approve the Merger and other related matters to be
considered at the Parent Meeting, all of the Parent Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Parent Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Parent Meeting, including on the exercise, conversion or
exchange of all outstanding options of EFI and warrants of EFI (the
“Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Parent Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Parent Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Parent
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Parent Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Parent Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Parent Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of EFI for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Parent Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Parent Common Shares for the purpose
of affecting the control of EFI; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify Uranerz, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify Uranerz of any proposal, inquiry,
offer or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to EFI; or any
material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as Uranerz may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of EFI or is
a senior officer of EFI from engaging, in the Securityholder’s capacity as a
director or senior officer of EFI, in discussions or negotiations with a person
in response to an Acquisition Proposal in circumstances where EFI is permitted
by Section 7.2 of the Merger Agreement to engage in such discussions or
negotiations, and provided further that no disclosure or notification is
required under clauses 1.2(l) or (m) if the board of directors of EFI has
determined that disclosure or notification of such Acquisition Proposal,
proposal, inquiry, offer or request would not be required by EFI under Section
7.2 of the Merger Agreement. For greater certainty, the Securityholder
acknowledges that this Section 1.3 shall not affect the Securityholder’s
obligation to vote the Subject Shares in favour of the Parent Resolution in
accordance with the terms and conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that
Uranerz is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of EFI beneficially owned, directly or indirectly,
or over which control or direction is exercised by the Securityholder are
those listed immediately below the Securityholder’s Acceptance, and (ii)
other than any Convertible Securities listed immediately below the
Securityholder’s Acceptance and Parent Common Shares issuable on the
exercise or conversion of such Convertible Securities, the Securityholder
does not own, directly or indirectly, or control any convertible
securities and has no other agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase or acquisition by the Securityholder
or transfer to the Securityholder of additional securities of
EFI; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of EFI; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon Uranerz, and based on such information as the Securityholder has
deemed appropriate, made its own analysis and decision to enter into this
Support Agreement; the Securityholder acknowledges that Uranerz has made
and makes no representation or warranty, whether express or implied, of
any kind or character except as expressly set forth in this Support
Agreement and the Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 Uranerz represents and warrants to
the Securityholder as follows and acknowledges that the Securityholder is
relying upon such representations and warranties in connection with entering
into this Support Agreement:
| |
(a) |
Uranerz is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by Uranerz and constitutes a legal, valid and binding obligation
of Uranerz, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by Uranerz of this
Support Agreement or the Merger Agreement, nor the performance by Uranerz
of its obligations under this Support Agreement or the Merger Agreement
shall result in the breach or violation of, or constitute a default under,
or conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of Uranerz; or |
| |
|
|
|
| |
|
(ii) |
any laws to which Uranerz is subject or by which Uranerz
is bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect Uranerz’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of Uranerz and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if Uranerz has
not complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of Uranerz herein
is untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
(e) |
by written notice of Uranerz if the resolution approving
the Merger is not approved by the requisite majority of EFI
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
Uranerz, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by Uranerz to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to Uranerz: |
| |
|
|
| |
[●]
|
|
- 9 -
With a copy (which shall not constitute
notice) to:
McMillan LLP
Royal Centre
1055
W. Georgia Street, Suite 1500
PO Box 11117
Vancouver, BC V6E 4N7
Attention: Michael Taylor
Facsimile: (604) 685-7084
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes
and acknowledges that this Support Agreement is an integral part of Uranerz
entering into the Merger Agreement, and that Uranerz would not contemplate
proceeding with entering into the Merger Agreement unless this Support Agreement
was entered into by the Securityholder, and that a breach by the Securityholder
of any covenants or other commitments contained in this Support Agreement will
cause Uranerz to sustain injury for which it would not have an adequate remedy
at law for money damages. Therefore, the Securityholder agrees that, in the
event of any such breach, Uranerz shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and permanent
injunctive and other equitable relief in addition to any other remedy to which
they may be entitled, at law or in equity, and the Securityholder further agrees
to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| URANERZ ENERGY CORPORATION |
| |
|
|
| By: |
(signed) “Glenn Catchpole” |
| |
Name: |
Glenn Catchpole |
| |
Title: |
Chief Executive Officer
|
- S1 -
SECURITYHOLDER’S ACCEPTANCE
Irrevocably accepted and agreed this 4th day of
January, 2015.
| Address for Notice: |
|
Name of Securityholder: |
| |
|
|
| |
|
Tae Hwan Kim |
| |
|
|
| |
|
Signature: |
| |
|
|
| |
|
(signed) “Tae Hwan Kim”
|
| |
|
Number of Convertible
|
| Registered or |
Number of |
Securities
|
| Beneficial Holder |
Common Shares |
Warrants |
Options |
| |
|
|
10,000 |
| |
|
|
|
| |
|
|
|
| |
|
|
|
| Total: |
|
|
10,000
|
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Arnold Jacob Dyck |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of Uranerz or
is a senior officer of Uranerz from engaging, in the Securityholder’s capacity
as a director or senior officer of Uranerz, in discussions or negotiations with
a person in response to an Acquisition Proposal in circumstances where Uranerz
is permitted by Section 7.2 of the Merger Agreement to engage in such
discussions or negotiations, and provided further that no disclosure or
notification is required under clauses 1.2(l) or (m) if the board of directors
of Uranerz has determined that disclosure or notification of such Acquisition
Proposal, proposal, inquiry, offer or request would not be required by Uranerz
under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that EFI
is relying upon such representations and warranties in connection with entering
into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and warrants to the
Securityholder as follows and acknowledges that the Securityholder is relying
upon such representations and warranties in connection with entering into this
Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of EFI and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
EFI, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder acknowledges
that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other communication
required or permitted to be given hereunder shall be sufficiently given if
delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
| |
225 Union Blvd., Suite 600 |
| |
Lakewood, CO 80228 |
| |
Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
| |
Facsimile: |
303-974-2141 |
| |
With a copy to: |
| |
|
|
| |
Borden Ladner Gervais LLP |
| |
Scotia Plaza, 40 King Street West |
| |
Toronto, ON |
M5H 3Y4 |
| |
Attention: |
Mark F. Wheeler |
| |
Facsimile: |
416-361-7376 |
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement (together
with all other documents and instruments referred to herein) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
| |
|
|
| By: |
(signed) “Stephen P. Antony” |
| |
Name: |
Stephen P. Antony |
| |
Title: |
President & Chief Executive |
| |
|
Officer |
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Benjamin Leboe |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, |
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal;
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of Uranerz or
is a senior officer of Uranerz from engaging, in the Securityholder’s capacity
as a director or senior officer of Uranerz, in discussions or negotiations with
a person in response to an Acquisition Proposal in circumstances where Uranerz
is permitted by Section 7.2 of the Merger Agreement to engage in such
discussions or negotiations, and provided further that no disclosure or
notification is required under clauses 1.2(l) or (m) if the board of directors
of Uranerz has determined that disclosure or notification of such Acquisition
Proposal, proposal, inquiry, offer or request would not be required by Uranerz
under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that EFI
is relying upon such representations and warranties in connection with entering
into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and warrants to the
Securityholder as follows and acknowledges that the Securityholder is relying
upon such representations and warranties in connection with entering into this
Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of EFI and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
EFI, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder acknowledges
that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other communication
required or permitted to be given hereunder shall be sufficiently given if
delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
| |
225 Union Blvd., Suite 600 |
| |
Lakewood, CO 80228 |
| |
Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
| |
Facsimile: |
303-974-2141 |
| |
With a copy to: |
| |
|
|
| |
Borden Ladner Gervais LLP |
| |
Scotia Plaza, 40 King Street West |
| |
Toronto, ON |
M5H 3Y4 |
| |
Attention: |
Mark F. Wheeler |
| |
Facsimile: |
416-361-7376 |
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement (together
with all other documents and instruments referred to herein) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
| |
|
|
| By: |
(signed) “Stephen P. Antony” |
| |
Name: |
Stephen P. Antony |
| |
Title: |
President & Chief Executive |
| |
|
Officer |
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Dennis Lyle Higgs |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
1.2 The Securityholder
hereby covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (includin g at any adjournment or
postponement thereof) the Subject Shares in favour of any resolutions
approving the Merger and other related matters or resolutions necessary or
desirable to implement the Merger to be considered at the Target Meeting
and to deliver a proxy, or to the extent that the Securityholder is a
beneficial owner, a voting instruction form, in each case duly completed
and executed in respect of all of the Subject Shares, giving effect to
such vote no later than 10 business days prior to the Target
Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article
1 shall prevent a Securityholder who is a member of the board of directors of
Uranerz or is a senior officer of Uranerz from engaging, in the Securityholder’s
capacity as a director or senior officer of Uranerz, in discussions or
negotiations with a person in response to an Acquisition Proposal in
circumstances where Uranerz is permitted by Section 7.2 of the Merger Agreement
to engage in such discussions or negotiations, and provided further that no
disclosure or notification is required under clauses 1.2(l) or (m) if the board
of directors of Uranerz has determined that disclosure or notification of such
Acquisition Proposal, proposal, inquiry, offer or request would not be required
by Uranerz under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by
its acceptance hereof represents and warrants as follows and acknowledges that
EFI is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
| |
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and
warrants to the Securityholder as follows and acknowledges that the
Securityholder is relying upon such representations and warranties in connection
with entering into this Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement
will automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of EFI and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination
pursuant to Section 3.1 the provisions of this Agreement will become void and no
party shall have any liability to the other party, provided that no termination
pursuant to Section 3.1 shall prejudice the rights of a party as a result of any
breach by any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support
Agreement, unless otherwise expressly stated or the context otherwise
requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement
shall become effective in respect of the Securityholder upon both: (a) execution
and delivery thereof by the Securityholder; and (b) the execution and delivery
of the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement
may be executed by facsimile or electronically and in any number of
counterparts, each of which shall be deemed to be original and all of which
taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder
consents to the disclosure of the substance of this Support Agreement in any
press release or any circular relating to the Merger and to the filing of this
Support Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement
shall be binding upon and shall enure to the benefit of and be enforceable by
each of the parties hereto and their respective successors, permitted assigns,
heirs, executors and personal representatives. This Support Agreement shall not
be assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement
and the rights hereunder are not transferable or assignable by the
Securityholder or EFI, as applicable, without the prior written consent of the
other (which consent may be withheld at the discretion of the other).
4.8 Time shall be of the
essence of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
225 Union Blvd., Suite
600
Lakewood, CO
80228
Attention: Stephen P. Antony,
President and Chief Executive
Officer
Facsimile: 303-974-2141
With a copy to:
Borden Ladner Gervais LLP
Scotia
Plaza, 40 King Street West
Toronto, ON M5H
3Y4
Attention: Mark F.
Wheeler
Facsimile: 416-361-7376
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement
shall be governed in all respects, including validity, interpretation and
effect, by the laws of the State of Nevada, without giving effect to any
principles of conflict of laws thereof which would result in the application of
the laws of any other jurisdiction, and all actions and proceedings arising out
of or relating to this Support Agreement shall be heard and determined
exclusively in the courts of the State of Nevada.
4.14 The Securityholder
recognizes and acknowledges that this Support Agreement is an integral part of
EFI entering into the Merger Agreement, and that EFI would not contemplate
proceeding with entering into the Merger Agreement unless this Support Agreement
was entered into by the Securityholder, and that a breach by the Securityholder
of any covenants or other commitments contained in this Support Agreement will
cause EFI to sustain injury for which it would not have an adequate remedy at
law for money damages. Therefore, the Securityholder agrees that, in the event
of any such breach, EFI shall be entitled to the remedy of specific performance
of such covenants or commitments and preliminary and permanent injunctive and
other equitable relief in addition to any other remedy to which they may be
entitled, at law or in equity, and the Securityholder further agrees to waive
any requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
| |
|
|
| By: |
(signed) “Stephen P. Antony” |
| |
Name: |
Stephen P. Antony |
| |
Title: |
President & Chief Executive |
| |
|
Officer |
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Gerhard F. Kirchner |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
1.2 The Securityholder
hereby covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article
1 shall prevent a Securityholder who is a member of the board of directors of
Uranerz or is a senior officer of Uranerz from engaging, in the Securityholder’s
capacity as a director or senior officer of Uranerz, in discussions or
negotiations with a person in response to an Acquisition Proposal in
circumstances where Uranerz is permitted by Section 7.2 of the Merger Agreement
to engage in such discussions or negotiations, and provided further that no
disclosure or notification is required under clauses 1.2(l) or (m) if the board
of directors of Uranerz has determined that disclosure or notification of such
Acquisition Proposal, proposal, inquiry, offer or request would not be required
by Uranerz under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by
its acceptance hereof represents and warrants as follows and acknowledges that
EFI is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and
warrants to the Securityholder as follows and acknowledges that the
Securityholder is relying upon such representations and warranties in connection
with entering into this Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement
will automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of EFI and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination
pursuant to Section 3.1 the provisions of this Agreement will become void and no
party shall have any liability to the other party, provided that no termination
pursuant to Section 3.1 shall prejudice the rights of a party as a result of any
breach by any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support
Agreement, unless otherwise expressly stated or the context otherwise
requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement
shall become effective in respect of the Securityholder upon both: (a) execution
and delivery thereof by the Securityholder; and (b) the execution and delivery
of the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement
may be executed by facsimile or electronically and in any number of
counterparts, each of which shall be deemed to be original and all of which
taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder
consents to the disclosure of the substance of this Support Agreement in any
press release or any circular relating to the Merger and to the filing of this
Support Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement
shall be binding upon and shall enure to the benefit of and be enforceable by
each of the parties hereto and their respective successors, permitted assigns,
heirs, executors and personal representatives. This Support Agreement shall not
be assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement
and the rights hereunder are not transferable or assignable by the
Securityholder or EFI, as applicable, without the prior written consent of the
other (which consent may be withheld at the discretion of the other).
4.8 Time shall be of the
essence of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
| |
225 Union Blvd., Suite 600 |
| |
Lakewood, CO 80228 |
| |
Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
| |
Facsimile: |
303-974-2141 |
| |
With a copy to: |
| |
|
|
| |
Borden Ladner Gervais LLP |
| |
Scotia Plaza, 40 King Street West |
| |
Toronto, ON |
M5H 3Y4 |
| |
Attention: |
Mark F. Wheeler |
| |
Facsimile: |
416-361-7376 |
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Nevada, without giving effect to any principles of
conflict of laws thereof which would result in the application of the laws of
any other jurisdiction, and all actions and proceedings arising out of or
relating to this Support Agreement shall be heard and determined exclusively in
the courts of the State of Nevada.
4.14 The Securityholder recognizes
and acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
| |
|
|
| By: |
(signed) “Stephen P. Antony” |
| |
Name: |
Stephen P. Antony |
| |
Title: |
President & Chief Executive |
| |
|
Officer |
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Douglas Hirschman |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
1.2 The Securityholder
hereby covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article
1 shall prevent a Securityholder who is a member of the board of directors of
Uranerz or is a senior officer of Uranerz from engaging, in the Securityholder’s
capacity as a director or senior officer of Uranerz, in discussions or
negotiations with a person in response to an Acquisition Proposal in
circumstances where Uranerz is permitted by Section 7.2 of the Merger Agreement
to engage in such discussions or negotiations, and provided further that no
disclosure or notification is required under clauses 1.2(l) or (m) if the board
of directors of Uranerz has determined that disclosure or notification of such
Acquisition Proposal, proposal, inquiry, offer or request would not be required
by Uranerz under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by
its acceptance hereof represents and warrants as follows and acknowledges that
EFI is relying upon such representations and warranties in connection with
entering into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and
warrants to the Securityholder as follows and acknowledges that the
Securityholder is relying upon such representations and warranties in connection
with entering into this Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement
will automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of EFI and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination
pursuant to Section 3.1 the provisions of this Agreement will become void and no
party shall have any liability to the other party, provided that no termination
pursuant to Section 3.1 shall prejudice the rights of a party as a result of any
breach by any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support
Agreement, unless otherwise expressly stated or the context otherwise
requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement
shall become effective in respect of the Securityholder upon both: (a) execution
and delivery thereof by the Securityholder; and (b) the execution and delivery
of the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement
may be executed by facsimile or electronically and in any number of
counterparts, each of which shall be deemed to be original and all of which
taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder
consents to the disclosure of the substance of this Support Agreement in any
press release or any circular relating to the Merger and to the filing of this
Support Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement
shall be binding upon and shall enure to the benefit of and be enforceable by
each of the parties hereto and their respective successors, permitted assigns,
heirs, executors and personal representatives. This Support Agreement shall not
be assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement
and the rights hereunder are not transferable or assignable by the
Securityholder or EFI, as applicable, without the prior written consent of the
other (which consent may be withheld at the discretion of the other).
4.8 Time shall be of the
essence of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
| |
225 Union Blvd., Suite 600 |
| |
Lakewood, CO 80228 |
| |
Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
| |
Facsimile: |
303-974-2141 |
| |
With a copy to: |
| |
|
|
| |
Borden Ladner Gervais LLP |
| |
Scotia Plaza, 40 King Street West |
| |
Toronto, ON |
M5H 3Y4 |
| |
Attention: |
Mark F. Wheeler |
| |
Facsimile: |
416-361-7376 |
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall
be governed in all respects, including validity, interpretation and effect, by
the laws of the State of Nevada, without giving effect to any principles of
conflict of laws thereof which would result in the application of the laws of
any other jurisdiction, and all actions and proceedings arising out of or
relating to this Support Agreement shall be heard and determined exclusively in
the courts of the State of Nevada.
4.14 The Securityholder recognizes
and acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
| |
|
|
| By: |
(signed) “Stephen P. Antony” |
| |
Name: |
Stephen P. Antony |
| |
Title: |
President & Chief Executive |
| |
|
Officer |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Glenn Catchpole |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
- 2 -
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
- 3 -
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of Uranerz or
is a senior officer of Uranerz from engaging, in the Securityholder’s capacity
as a director or senior officer of Uranerz, in discussions or negotiations with
a person in response to an Acquisition Proposal in circumstances where Uranerz
is permitted by Section 7.2 of the Merger Agreement to engage in such
discussions or negotiations, and provided further that no disclosure or
notification is required under clauses 1.2(l) or (m) if the board of directors
of Uranerz has determined that disclosure or notification of such Acquisition
Proposal, proposal, inquiry, offer or request would not be required by Uranerz
under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that EFI
is relying upon such representations and warranties in connection with entering
into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
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(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
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(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 EFI represents and warrants to the
Securityholder as follows and acknowledges that the Securityholder is relying
upon such representations and warranties in connection with entering into this
Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of EFI and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
- 7 -
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination pursuant to Section 3.1 the provisions of
this Agreement will become void and no party shall have any liability to the
other party, provided that no termination pursuant to Section 3.1 shall
prejudice the rights of a party as a result of any breach by any other party of
its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
- 8 -
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
EFI, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder acknowledges
that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other communication
required or permitted to be given hereunder shall be sufficiently given if
delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
| |
225 Union Blvd., Suite 600 |
| |
Lakewood, CO 80228 |
| |
Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
| |
Facsimile: |
303-974-2141 |
- 9 -
| |
With a copy to: |
| |
|
|
| |
Borden Ladner Gervais LLP |
| |
Scotia Plaza, 40 King Street West |
| |
Toronto, ON |
M5H 3Y4 |
| |
Attention: |
Mark F. Wheeler |
| |
Facsimile: |
416-361-7376 |
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement (together
with all other documents and instruments referred to herein) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
| |
|
|
| By: |
(signed) “Stephen P. Antony” |
| |
Name: |
Stephen P. Antony |
| |
Title: |
President & Chief Executive |
| |
|
Officer |
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Glenda Thomas |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of Uranerz or
is a senior officer of Uranerz from engaging, in the Securityholder’s capacity
as a director or senior officer of Uranerz, in discussions or negotiations with
a person in response to an Acquisition Proposal in circumstances where Uranerz
is permitted by Section 7.2 of the Merger Agreement to engage in such
discussions or negotiations, and provided further that no disclosure or
notification is required under clauses 1.2(l) or (m) if the board of directors
of Uranerz has determined that disclosure or notification of such Acquisition
Proposal, proposal, inquiry, offer or request would not be required by Uranerz
under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that EFI
is relying upon such representations and warranties in connection with entering
into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and warrants to the
Securityholder as follows and acknowledges that the Securityholder is relying
upon such representations and warranties in connection with entering into this
Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of EFI and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
EFI, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder acknowledges
that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other communication
required or permitted to be given hereunder shall be sufficiently given if
delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
| |
225 Union Blvd., Suite 600 |
| |
Lakewood, CO 80228 |
| |
Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
| |
Facsimile: |
303-974-2141 |
| |
With a copy to: |
| |
|
|
| |
Borden Ladner Gervais LLP |
| |
Scotia Plaza, 40 King Street West |
| |
Toronto, ON |
M5H 3Y4 |
| |
Attention: |
Mark F. Wheeler |
| |
Facsimile: |
416-361-7376 |
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement (together
with all other documents and instruments referred to herein) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
| |
|
|
| By: |
(signed) “Stephen P. Antony” |
| |
Name: |
Stephen P. Antony |
| |
Title: |
President & Chief Executive |
| |
|
Officer |
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Mike Thomas |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of Uranerz or
is a senior officer of Uranerz from engaging, in the Securityholder’s capacity
as a director or senior officer of Uranerz, in discussions or negotiations with
a person in response to an Acquisition Proposal in circumstances where Uranerz
is permitted by Section 7.2 of the Merger Agreement to engage in such
discussions or negotiations, and provided further that no disclosure or
notification is required under clauses 1.2(l) or (m) if the board of directors
of Uranerz has determined that disclosure or notification of such Acquisition
Proposal, proposal, inquiry, offer or request would not be required by Uranerz
under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that EFI
is relying upon such representations and warranties in connection with entering
into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and warrants to the
Securityholder as follows and acknowledges that the Securityholder is relying
upon such representations and warranties in connection with entering into this
Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
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(a) |
at any time by mutual consent of EFI and the
Securityholder; |
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(b) |
completion of the Merger in accordance with the Merger
Agreement; |
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(c) |
termination of the Merger Agreement in accordance with
its terms; |
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(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
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(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
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(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
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(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
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(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
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(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
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(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
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(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
EFI, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder acknowledges
that it:
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(a) |
has been advised by EFI to seek independent legal
advice; |
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(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
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(c) |
understands its rights and obligations under this Support
Agreement; and |
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(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other communication
required or permitted to be given hereunder shall be sufficiently given if
delivered or sent by facsimile transmission as follows:
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(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
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(b) |
if to EFI: |
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225 Union Blvd., Suite 600 |
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Lakewood, CO 80228 |
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Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
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Facsimile: |
303-974-2141 |
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With a copy to: |
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Borden Ladner Gervais LLP |
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Scotia Plaza, 40 King Street West |
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Toronto, ON |
M5H 3Y4 |
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Attention: |
Mark F. Wheeler |
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Facsimile: |
416-361-7376 |
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(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement (together
with all other documents and instruments referred to herein) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
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| By: |
(signed) “Stephen P. Antony” |
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Name: |
Stephen P. Antony |
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Title: |
President & Chief Executive |
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|
Officer |
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Paul F. Saxton |
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(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
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(i) |
to support the Merger; |
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(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
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(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
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(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
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(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
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(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
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(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
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(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
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(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
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(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
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(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
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(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
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(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
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(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
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(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
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(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
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(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of Uranerz or
is a senior officer of Uranerz from engaging, in the Securityholder’s capacity
as a director or senior officer of Uranerz, in discussions or negotiations with
a person in response to an Acquisition Proposal in circumstances where Uranerz
is permitted by Section 7.2 of the Merger Agreement to engage in such
discussions or negotiations, and provided further that no disclosure or
notification is required under clauses 1.2(l) or (m) if the board of directors
of Uranerz has determined that disclosure or notification of such Acquisition
Proposal, proposal, inquiry, offer or request would not be required by Uranerz
under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that EFI
is relying upon such representations and warranties in connection with entering
into this Support Agreement and the Merger Agreement:
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(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
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(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
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(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
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(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
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(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
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(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
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(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
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(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
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(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
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(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
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(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
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(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
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(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and warrants to the
Securityholder as follows and acknowledges that the Securityholder is relying
upon such representations and warranties in connection with entering into this
Support Agreement:
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(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
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(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
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(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
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(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
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(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
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except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
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(a) |
at any time by mutual consent of EFI and the
Securityholder; |
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|
|
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(b) |
completion of the Merger in accordance with the Merger
Agreement; |
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(c) |
termination of the Merger Agreement in accordance with
its terms; |
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(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
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(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
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(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
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(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
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(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
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(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
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(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
EFI, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder acknowledges
that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other communication
required or permitted to be given hereunder shall be sufficiently given if
delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
| |
225 Union Blvd., Suite 600 |
| |
Lakewood, CO 80228 |
| |
Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
| |
Facsimile: |
303-974-2141 |
| |
With a copy to: |
| |
|
|
| |
Borden Ladner Gervais LLP |
| |
Scotia Plaza, 40 King Street West |
| |
Toronto, ON |
M5H 3Y4 |
| |
Attention: |
Mark F. Wheeler |
| |
Facsimile: |
416-361-7376 |
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement (together
with all other documents and instruments referred to herein) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
| |
|
|
| By: |
(signed) “Stephen P. Antony” |
| |
Name: |
Stephen P. Antony |
| |
Title: |
President & Chief Executive |
| |
|
Officer |
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Peter Bell |
| |
(the “Securityholder”)
|
Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
| |
(i) |
to support the Merger; |
| |
|
|
| |
(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
| |
|
|
| |
(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
| |
(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
| |
|
|
| |
(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
| |
|
|
| |
(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
| |
|
|
| |
(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
| |
|
|
| |
(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of Uranerz or
is a senior officer of Uranerz from engaging, in the Securityholder’s capacity
as a director or senior officer of Uranerz, in discussions or negotiations with
a person in response to an Acquisition Proposal in circumstances where Uranerz
is permitted by Section 7.2 of the Merger Agreement to engage in such
discussions or negotiations, and provided further that no disclosure or
notification is required under clauses 1.2(l) or (m) if the board of directors
of Uranerz has determined that disclosure or notification of such Acquisition
Proposal, proposal, inquiry, offer or request would not be required by Uranerz
under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that EFI
is relying upon such representations and warranties in connection with entering
into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and warrants to the
Securityholder as follows and acknowledges that the Securityholder is relying
upon such representations and warranties in connection with entering into this
Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of EFI and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
EFI, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder acknowledges
that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other communication
required or permitted to be given hereunder shall be sufficiently given if
delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
| |
225 Union Blvd., Suite 600 |
| |
Lakewood, CO 80228 |
| |
Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
| |
Facsimile: |
303-974-2141 |
| |
With a copy to: |
| |
|
|
| |
Borden Ladner Gervais LLP |
| |
Scotia Plaza, 40 King Street West |
| |
Toronto, ON |
M5H 3Y4 |
| |
Attention: |
Mark F. Wheeler |
| |
Facsimile: |
416-361-7376 |
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement (together
with all other documents and instruments referred to herein) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
| |
|
|
| By: |
(signed) “Stephen P. Antony” |
| |
Name: |
Stephen P. Antony |
| |
Title: |
President & Chief Executive |
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Officer |
- S1 -
SUPPORT AGREEMENT
January 4, 2015
| TO: |
W. Paul Goranson |
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(the “Securityholder”)
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Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
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(i) |
to support the Merger; |
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(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
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(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE
SECURITYHOLDER
1.1 The Securityholder acknowledges
and agrees that he, she or it has received a copy of the Merger Agreement and,
in particular, has been made aware of the provisions of Article VII of the
Merger Agreement
1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
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(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
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(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
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(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
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(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
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(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
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(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
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(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition
Proposal, or otherwise knowingly facilitate or knowingly encourage any
effort or attempt to make or implement an Acquisition Proposal; |
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(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
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(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
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(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
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(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
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(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
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(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
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(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1 shall
prevent a Securityholder who is a member of the board of directors of Uranerz or
is a senior officer of Uranerz from engaging, in the Securityholder’s capacity
as a director or senior officer of Uranerz, in discussions or negotiations with
a person in response to an Acquisition Proposal in circumstances where Uranerz
is permitted by Section 7.2 of the Merger Agreement to engage in such
discussions or negotiations, and provided further that no disclosure or
notification is required under clauses 1.2(l) or (m) if the board of directors
of Uranerz has determined that disclosure or notification of such Acquisition
Proposal, proposal, inquiry, offer or request would not be required by Uranerz
under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the Securityholder’s obligation to vote the Subject
Shares in favour of the Uranerz Resolution in accordance with the terms and
conditions of this Support Agreement.
ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that EFI
is relying upon such representations and warranties in connection with entering
into this Support Agreement and the Merger Agreement:
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(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
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(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
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(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
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(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
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(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
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(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
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(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
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(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
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(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
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(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
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(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
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(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
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(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
2.2 EFI represents and warrants to the
Securityholder as follows and acknowledges that the Securityholder is relying
upon such representations and warranties in connection with entering into this
Support Agreement:
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(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
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(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
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(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
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(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
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(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
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except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
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(a) |
at any time by mutual consent of EFI and the
Securityholder; |
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(b) |
completion of the Merger in accordance with the Merger
Agreement; |
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(c) |
termination of the Merger Agreement in accordance with
its terms; |
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(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default in any
material respect in the performance of its obligations under this Support
Agreement; |
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(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement, unless
otherwise expressly stated or the context otherwise requires:
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(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
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(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
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(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
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(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
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(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
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(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the application
of any rule of law which otherwise would be applicable in connection with the
construction of this Support Agreement that ambiguous or conflicting terms or
provisions should be construed against the party who (or whose counsel) prepared
the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be deemed to constitute one and the same
instrument, and it shall not be necessary in making proof of this Support
Agreement to produce more than one counterpart.
4.5 The Securityholder consents to the
disclosure of the substance of this Support Agreement in any press release or
any circular relating to the Merger and to the filing of this Support Agreement
as may be required pursuant to applicable laws.
4.6 This Support Agreement shall be
binding upon and shall enure to the benefit of and be enforceable by each of the
parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and the
rights hereunder are not transferable or assignable by the Securityholder or
EFI, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence of
this Support Agreement.
4.9 If any term, provision, covenant
or restriction of this Support Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Support Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
and the parties shall negotiate in good faith to modify the agreement to
preserve each party’s anticipated benefits under this Support Agreement.
4.10 The Securityholder acknowledges
that it:
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(a) |
has been advised by EFI to seek independent legal
advice; |
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(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
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(c) |
understands its rights and obligations under this Support
Agreement; and |
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(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other communication
required or permitted to be given hereunder shall be sufficiently given if
delivered or sent by facsimile transmission as follows:
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(a) |
in the case of a Securityholder, to the address set forth
opposite the Securityholder’s Acceptance; and |
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(b) |
if to EFI: |
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225 Union Blvd., Suite 600 |
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Lakewood, CO 80228 |
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Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
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Facsimile: |
303-974-2141 |
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With a copy to: |
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Borden Ladner Gervais LLP |
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Scotia Plaza, 40 King Street West |
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Toronto, ON |
M5H 3Y4 |
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Attention: |
Mark F. Wheeler |
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Facsimile: |
416-361-7376 |
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(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement (together
with all other documents and instruments referred to herein) constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof.
4.13 This Support Agreement shall be
governed in all respects, including validity, interpretation and effect, by the
laws of the State of Nevada, without giving effect to any principles of conflict
of laws thereof which would result in the application of the laws of any other
jurisdiction, and all actions and proceedings arising out of or relating to this
Support Agreement shall be heard and determined exclusively in the courts of the
State of Nevada.
4.14 The Securityholder recognizes and
acknowledges that this Support Agreement is an integral part of EFI entering
into the Merger Agreement, and that EFI would not contemplate proceeding with
entering into the Merger Agreement unless this Support Agreement was entered
into by the Securityholder, and that a breach by the Securityholder of any
covenants or other commitments contained in this Support Agreement will cause
EFI to sustain injury for which it would not have an adequate remedy at law for
money damages. Therefore, the Securityholder agrees that, in the event of any
such breach, EFI shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and the Securityholder further agrees to waive any
requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
| ENERGY FUELS INC. |
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| By: |
(signed) “Stephen P. Antony” |
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Name: |
Stephen P. Antony |
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Title: |
President & Chief Executive |
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Officer |
SUPPORT AGREEMENT
January 4, 2015
| TO: |
Bruce Larson |
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(the “Securityholder”)
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Pursuant to the terms and subject
to the conditions of an Agreement and Plan of Merger dated as of January 4, 2015
(the “Merger Agreement”), among Energy Fuels Inc. (“EFI”), Uranerz
Energy Corporation (“Uranerz”) and EFR Nevada Corp. (“Subco”),
Subco and Uranerz will merge and the shareholders of Uranerz will receive common
shares of EFI in consideration of the indirect acquisition by EFI of their
shares of Uranerz, all by way of a Plan of Merger (the “Merger”) under
Section 92A.250 of Nevada Revised Statutes.
Capitalized terms used in this
support agreement (“Support Agreement”) and not otherwise defined herein
that are defined in the Merger Agreement shall have the respective meanings
ascribed thereto in the Merger Agreement, as it may be amended from time to
time.
This Support Agreement sets out
the terms and conditions on which the Securityholder agrees:
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(i) |
to support the Merger; |
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(ii) |
to vote in favour of the resolutions put forth at the
Target Meeting to approve the Merger and other related matters to be
considered at the Target Meeting, all of the Uranerz Common Shares
beneficially owned or controlled by the Securityholder, as listed
immediately below the signature of the Securityholder evidencing the
Securityholder’s acceptance of this Support Agreement (the
“Acceptance”), any additional Uranerz Common Shares which the
Securityholder may acquire after the date hereof but prior to the record
date for the Target Meeting, including on the exercise, conversion or
exchange of all outstanding options of Uranerz and warrants of Uranerz
(the “Convertible Securities”) as listed immediately below the
Securityholder’s Acceptance, and any other securities which are otherwise
entitled to be voted at the Target Meeting beneficially owned or
controlled by the Securityholder, (collectively, all such Uranerz Common
Shares being referred to as “Subject Shares”); and |
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(iii) |
to comply with the restrictions, obligations and
covenants of the Securityholder set forth herein. |
ARTICLE 1
COVENANTS OF THE SECURITYHOLDER
1.1 The Securityholder
acknowledges and agrees that he, she or it has received a copy of the Merger
Agreement and, in particular, has been made aware of the provisions of Article
VII of the Merger Agreement
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1.2 The Securityholder hereby
covenants and agrees, from the date hereof until the earlier of: (i) the
termination of this Support Agreement pursuant to Article 3 hereof; and (ii) the
Effective Date, except in accordance with the terms of this Support
Agreement:
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(a) |
to irrevocably vote or cause to be voted at the Target
Meeting (including at any adjournment or postponement thereof) the Subject
Shares in favour of any resolutions approving the Merger and other related
matters or resolutions necessary or desirable to implement the Merger to
be considered at the Target Meeting and to deliver a proxy, or to the
extent that the Securityholder is a beneficial owner, a voting instruction
form, in each case duly completed and executed in respect of all of the
Subject Shares, giving effect to such vote no later than 10 business days
prior to the Target Meeting; |
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(b) |
not to exercise any dissent rights or any other rights
available to the Securityholder to delay, upset or challenge the
Merger; |
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(c) |
not to exercise any shareholder rights or remedies
available at common law pursuant to applicable securities or other laws to
delay, hinder, upset or challenge the Merger; |
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(d) |
not to option, sell, assign, transfer, alienate, dispose
of, gift, grant, pledge, create or permit an encumbrance on, grant a
security interest in or otherwise convey any Subject Shares or any voting
rights attached thereto or any other right or interest therein, or agree
to do any of the foregoing, provided that, for the avoidance of doubt: (i)
the Securityholder shall be entitled to exercise any Convertible
Securities held by the Securityholder during the term of this Support
Agreement, and (ii) any Subject Shares issued on exercise of Convertible
Securities during the term of this Support Agreement shall be subject to
the terms of this Support Agreement; |
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(e) |
not to grant or agree to grant any proxy or other right
to the Subject Shares, or enter into any voting trust or pooling agreement
or Merger or enter into or subject any of such Subject Shares to any other
agreement, Merger, understanding or commitment, formal or informal, with
respect to or relating to the voting thereof, other than in support of the
resolution approving the Merger and other related matters to be considered
at the Target Meeting; |
| |
|
|
| |
(f) |
not to requisition or join in the requisition of any
meeting of the shareholders of Uranerz for the purpose of considering any
resolution; |
| |
|
|
| |
(g) |
not to, in any manner, directly or indirectly, including
through any Representative, solicit, initiate, or knowingly encourage any
inquiries, proposals, offers or public announcements (or the submission or
initiation of any of the foregoing) from any person regarding any
Acquisition Proposal, engage in any negotiations concerning, or provide
any information to, or have any discussions with or otherwise cooperate
with, any person relating to an Acquisition Proposal, or otherwise
knowingly facilitate or knowingly encourage any effort or attempt to make
or implement an Acquisition Proposal; |
- 3 -
| |
|
|
| |
(h) |
not to solicit or arrange or provide assistance to any
other person to arrange for the solicitation of, purchases of or offers to
sell Uranerz Common Shares or act in concert or jointly with any other
person for the purpose of acquiring Uranerz Common Shares for the purpose
of affecting the control of Uranerz; |
| |
|
|
| |
(i) |
not to deposit or cause to be deposited the
Securityholder’s Subject Shares under any Acquisition Proposal; |
| |
|
|
| |
(j) |
not to take any action of any kind, directly or
indirectly, which might reasonably be regarded as likely to reduce the
success of, or delay or interfere with the completion of, the transactions
contemplated by the Merger Agreement; |
| |
|
|
| |
(k) |
to immediately cease, cause its Representatives to cease
and cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than with EFI or Uranerz or any
Representative of EFI or Uranerz) with respect to any Acquisition Proposal
or any potential Acquisition Proposal; |
| |
|
|
| |
(l) |
to promptly notify EFI, at first orally and then in
writing, of all Acquisition Proposals currently under consideration or of
which the Securityholder is aware; |
| |
|
|
| |
(m) |
to immediately notify EFI of any proposal, inquiry, offer
or request of which the Securityholder, to the knowledge of the
Securityholder, any of its directors, officers, employees, representatives
or agents becomes, directly or indirectly, aware: relating to an
Acquisition Proposal or potential Acquisition Proposal; for discussions or
negotiations in respect of an Acquisition Proposal or potential
Acquisition Proposal; for non-public information relating to Uranerz; or
any material amendments to the foregoing. Such notice shall include the
identity of the person making such proposal, inquiry, offer or request, a
description of the terms and conditions of, and the identity of the person
making, such proposal, inquiry, offer or request and such other details of
the proposal, inquiry, offer or request as EFI may reasonably request;
and |
| |
|
|
| |
(n) |
not to take any action to encourage or assist any other
person to do any of the prohibited acts referred to in the foregoing
provisions of this Section 1.2. |
1.3 Nothing in this Article 1
shall prevent a Securityholder who is a member of the board of directors of
Uranerz or is a senior officer of Uranerz from engaging, in the Securityholder’s
capacity as a director or senior officer of Uranerz, in discussions or
negotiations with a person in response to an Acquisition Proposal in
circumstances where Uranerz is permitted by Section 7.2 of the Merger Agreement
to engage in such discussions or negotiations, and provided further that no
disclosure or notification is required under clauses 1.2(l) or (m) if the board
of directors of Uranerz has determined that disclosure or notification of such
Acquisition Proposal, proposal, inquiry, offer or request would not be required
by Uranerz under Section 7.2 of the Merger Agreement. For greater certainty, the
Securityholder acknowledges that this Section 1.3 shall not affect the
Securityholder’s obligation to vote the Subject Shares in favour of the Uranerz
Resolution in accordance with the terms and conditions of this Support
Agreement.
- 4 -
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 The Securityholder by its
acceptance hereof represents and warrants as follows and acknowledges that EFI
is relying upon such representations and warranties in connection with entering
into this Support Agreement and the Merger Agreement:
| |
(a) |
the Securityholder is the beneficial owner of or controls
all of the Subject Shares set forth immediately below the Securityholder’s
Acceptance and the Securityholder is the registered or beneficial owner of
such Subject Shares; |
| |
|
|
| |
(b) |
as of the date of execution of this Support Agreement,
(i) the only securities of Uranerz beneficially owned, directly or
indirectly, or over which control or direction is exercised by the
Securityholder are those listed immediately below the Securityholder’s
Acceptance, and (ii) other than any Convertible Securities listed
immediately below the Securityholder’s Acceptance and Uranerz Common
Shares issuable on the exercise or conversion of such Convertible
Securities, the Securityholder does not own, directly or indirectly, or
control any convertible securities and has no other agreement or option,
or right or privilege (whether by law, pre-emptive or contractual) capable
of becoming an agreement or option, for the purchase or acquisition by the
Securityholder or transfer to the Securityholder of additional securities
of Uranerz; |
| |
|
|
| |
(c) |
the Securityholder has the sole right to vote all the
Subject Shares now beneficially owned or controlled; |
| |
|
|
| |
(d) |
all the Subject Shares held by the Securityholder, set
forth immediately below the Securityholder’s Acceptance, will, immediately
prior to the Effective Date, be beneficially owned by the Securityholder
with good and marketable title thereto, free and clear of any and all
encumbrances and are and will at such time be issued and outstanding as
fully paid and non-assessable shares in the capital of Uranerz; |
| |
|
|
| |
(e) |
the Securityholder has no agreement, option, or any right
or privilege (whether by law, pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase, acquisition or transfer
from the Securityholder of any of the Subject Shares or any interest
therein or right thereto, except pursuant to this Support
Agreement; |
| |
|
|
| |
(f) |
the Securityholder has no voting trust, pooling or
shareholder agreement, or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a voting trust or pooling
agreement, or other agreement or Merger affecting the Subject Shares or
the ability of the Securityholder to exercise all ownership rights
thereto, including the voting of the Subject
Shares; |
- 5 -
| |
(g) |
there are no legal proceedings in progress before any
public body, court or authority or, to the knowledge of the
Securityholder, pending or threatened against the Securityholder that
would adversely affect in any manner the ability of the Securityholder to
enter into this Support Agreement and to perform its obligations hereunder
or the title of the Securityholder to any of the Subject Shares, as set
forth immediately below the Securityholder’s Acceptance, and there is no
judgment, decree or order against the Securityholder that would adversely
affect in any manner the ability of the Securityholder to enter into this
Support Agreement and to perform its obligations hereunder or the title of
the Securityholder to any of the Subject Shares; |
| |
|
|
|
| |
(h) |
if the Securityholder is a corporation, the
Securityholder is validly existing under the laws of its jurisdiction of
organization; |
| |
|
|
|
| |
(i) |
the execution and delivery by the Securityholder of this
Support Agreement, the authorization of this Support Agreement by the
Securityholder, and the performance by the Securityholder of its
obligations under this Support Agreement: |
| |
|
|
|
| |
|
(i) |
do not require any authorization to be obtained by the
Securityholder (other than such authorizations as have been obtained by
the Securityholder on or before the date hereof); and |
| |
|
|
|
| |
|
(ii) |
will not result (with or without notice or the passage of
time) in a violation or breach of or constitute a default under any
provision of: (A) any applicable laws; (B) any note, bond, mortgage,
indenture, contract or agreement to which the Securityholder is party or
by which the Securityholder or its assets is bound; (C) any judgment,
decree, order or award of any governmental entity having jurisdiction over
the Securityholder; or (D) if the Securityholder is a corporation, the
constating documents, by-laws or resolutions of the board of directors or
shareholders thereof; |
| |
|
|
|
| |
(j) |
the Securityholder has independently and without reliance
upon EFI, and based on such information as the Securityholder has deemed
appropriate, made its own analysis and decision to enter into this Support
Agreement; the Securityholder acknowledges that EFI has made and makes no
representation or warranty, whether express or implied, of any kind or
character except as expressly set forth in this Support Agreement and the
Merger Agreeement; and |
| |
|
|
|
| |
(k) |
this Support Agreement has been duly executed and
delivered by the Securityholder and constitutes a legal, valid and binding
obligation of the Securityholder, enforceable against the Securityholder
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable laws affecting creditors’ rights generally, and to general
principles of equity. |
- 6 -
2.2 EFI represents and warrants
to the Securityholder as follows and acknowledges that the Securityholder is
relying upon such representations and warranties in connection with entering
into this Support Agreement:
| |
(a) |
EFI is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation or
continuance and has the requisite corporate power and capacity to execute
and deliver this Support Agreement, to enter into the Merger Agreement and
to perform its obligations hereunder and under the Merger
Agreement; |
| |
|
|
|
| |
(b) |
this Support Agreement has been duly executed and
delivered by EFI and constitutes a legal, valid and binding obligation of
EFI, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency and other applicable laws affecting creditors’
rights generally, and general principles of equity; and |
| |
|
|
|
| |
(c) |
neither the execution and delivery by EFI of this Support
Agreement or the Merger Agreement, nor the performance by EFI of its
obligations under this Support Agreement or the Merger Agreement shall
result in the breach or violation of, or constitute a default under, or
conflict with any provision of: |
| |
|
|
|
| |
|
(i) |
the constating documents, by-laws or resolutions of the
board of directors (or any committee thereof) of EFI; or |
| |
|
|
|
| |
|
(ii) |
any laws to which EFI is subject or by which EFI is
bound, |
| |
|
|
|
| |
|
except where such breach or violation individually or in
the aggregate would not reasonably be expected to materially adversely
affect EFI’s ability to perform its obligations under this Support
Agreement or the Merger Agreement. |
ARTICLE 3
TERMINATION
3.1 This Support Agreement will
automatically terminate on the first to occur of:
| |
(a) |
at any time by mutual consent of EFI and the
Securityholder; |
| |
|
|
| |
(b) |
completion of the Merger in accordance with the Merger
Agreement; |
| |
|
|
| |
(c) |
termination of the Merger Agreement in accordance with
its terms; |
| |
|
|
| |
(d) |
by written notice of the Securityholder if EFI has not
complied in any material respect with its covenants contained in this
Support Agreement or if any representation or warranty of EFI herein is
untrue or incorrect in any material respect and, in each case, such
non-compliance or inaccuracy is reasonably likely to prevent consummation
of the Merger and is not curable or, if curable, is not cured by the
earlier of: (A) the date which is five days from the date of written
notice of such breach; and (B) the Business Day prior to the Effective
Date; provided that at the time of such termination pursuant to this
Section 3.1(d) by the Securityholder, the Securityholder is not in default
in any material respect in the performance of its obligations under this
Support Agreement; |
- 7 -
| |
|
|
| |
(e) |
by written notice of EFI if the resolution approving the
Merger is not approved by the requisite majority of Uranerz
Shareholders. |
3.2 Upon termination pursuant to
Section 3.1 the provisions of this Agreement will become void and no party shall
have any liability to the other party, provided that no termination pursuant to
Section 3.1 shall prejudice the rights of a party as a result of any breach by
any other party of its obligations hereunder.
ARTICLE 4
GENERAL
4.1 In this Support Agreement,
unless otherwise expressly stated or the context otherwise requires:
| |
(a) |
references to “herein”, “hereby”, “hereunder”, “hereof”
and similar expressions are references to this Support Agreement and not
to any particular Section of or Schedule to this Support
Agreement; |
| |
|
|
| |
(b) |
references to an “Article” or a “Section” are references
to an Article or a Section of this Support Agreement; |
| |
|
|
| |
(c) |
words importing the singular shall include the plural and
vice versa, and words importing gender shall include the masculine,
feminine and neuter genders; |
| |
|
|
| |
(d) |
the term “Business Day” shall have the meanings ascribed
thereto in the Merger Agreement; |
| |
|
|
| |
(e) |
the use of headings is for convenience of reference only
and shall not affect the construction or interpretation hereof;
and |
| |
|
|
| |
(f) |
wherever the term “includes” or “including” is used, it
shall be deemed to mean “includes, without limitation” or “including,
without limitation”, respectively. |
4.2 The parties waive the
application of any rule of law which otherwise would be applicable in connection
with the construction of this Support Agreement that ambiguous or conflicting
terms or provisions should be construed against the party who (or whose counsel)
prepared the executed agreement or any earlier draft of the same.
4.3 This Support Agreement shall
become effective in respect of the Securityholder upon both: (a) execution and
delivery thereof by the Securityholder; and (b) the execution and delivery of
the Merger Agreement by EFI and Uranerz.
4.4 This Support Agreement may be
executed by facsimile or electronically and in any number of counterparts, each
of which shall be deemed to be original and all of which taken together shall be
deemed to constitute one and the same instrument, and it shall not be necessary
in making proof of this Support Agreement to produce more than one
counterpart.
- 8 -
4.5 The Securityholder consents
to the disclosure of the substance of this Support Agreement in any press
release or any circular relating to the Merger and to the filing of this Support
Agreement as may be required pursuant to applicable laws.
4.6 This Support Agreement shall
be binding upon and shall enure to the benefit of and be enforceable by each of
the parties hereto and their respective successors, permitted assigns, heirs,
executors and personal representatives. This Support Agreement shall not be
assignable by any party except in accordance with Section 4.7.
4.7 This Support Agreement and
the rights hereunder are not transferable or assignable by the Securityholder or
EFI, as applicable, without the prior written consent of the other (which
consent may be withheld at the discretion of the other).
4.8 Time shall be of the essence
of this Support Agreement.
4.9 If any term, provision,
covenant or restriction of this Support Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Support Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party’s anticipated benefits under this Support
Agreement.
4.10 The Securityholder
acknowledges that it:
| |
(a) |
has been advised by EFI to seek independent legal
advice; |
| |
|
|
| |
(b) |
has sought such independent legal advice or deliberately
decided not to do so; |
| |
|
|
| |
(c) |
understands its rights and obligations under this Support
Agreement; and |
| |
|
|
| |
(d) |
is executing this Support Agreement
voluntarily. |
4.11 Any notice or other
communication required or permitted to be given hereunder shall be sufficiently
given if delivered or sent by facsimile transmission as follows:
| |
(a) |
in the case of a Securityholder, to
the address set forth opposite the Securityholder’s Acceptance; and |
| |
|
|
| |
(b) |
if to EFI: |
| |
|
|
|
| |
|
225 Union Blvd., Suite 600 |
| |
|
Lakewood, CO 80228 |
| |
|
Attention: |
Stephen P. Antony, President and Chief
Executive Officer |
| |
|
Facsimile: |
303-974-2141 |
- 9 -
With a copy to:
Borden Ladner Gervais LLP
Scotia
Plaza, 40 King Street West
Toronto, ON M5H 3Y4
Attention: Mark F.
Wheeler
Facsimile: 416-361-7376
| |
(c) |
or at such other address as the party to which such
notice or other communication is to be given has last notified the party
giving the same in the manner provided in this
Section, |
and if so given shall be deemed to have been given on the date
on which it was actually received at the address provided herein (if received on
a Business Day, if not, the next succeeding Business Day) and if sent by
facsimile transmission be deemed to have been given at the time of actual
receipt of the complete facsimile transmission at the fax number provided herein
(if actually received prior to 4:30 p.m. (local time at the point of receipt) on
a Business Day, if not the next succeeding Business Day).
4.12 This Support Agreement
(together with all other documents and instruments referred to herein)
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other agreements and undertakings, both written
and oral, among the parties with respect to the subject matter hereof.
4.13 This Support Agreement
shall be governed in all respects, including validity, interpretation and
effect, by the laws of the State of Nevada, without giving effect to any
principles of conflict of laws thereof which would result in the application of
the laws of any other jurisdiction, and all actions and proceedings arising out
of or relating to this Support Agreement shall be heard and determined
exclusively in the courts of the State of Nevada.
4.14 The Securityholder
recognizes and acknowledges that this Support Agreement is an integral part of
EFI entering into the Merger Agreement, and that EFI would not contemplate
proceeding with entering into the Merger Agreement unless this Support Agreement
was entered into by the Securityholder, and that a breach by the Securityholder
of any covenants or other commitments contained in this Support Agreement will
cause EFI to sustain injury for which it would not have an adequate remedy at
law for money damages. Therefore, the Securityholder agrees that, in the event
of any such breach, EFI shall be entitled to the remedy of specific performance
of such covenants or commitments and preliminary and permanent injunctive and
other equitable relief in addition to any other remedy to which they may be
entitled, at law or in equity, and the Securityholder further agrees to waive
any requirement for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief.
- 10 -
If the foregoing accurately
reflects the terms and conditions of our agreement, would you kindly indicate
your acceptance hereof by signing, dating and returning to the undersigned the
enclosed Support Agreement by facsimile or otherwise.
ENERGY FUELS INC.
| |
By: |
(signed) “Stephen P. Antony” |
| |
|
Name: |
Stephen P. Antony |
| |
|
Title: |
President & Chief Executive |
| |
|
|
Officer |
Energy Fuels to Present at Noble Financial
Capital Markets Conference on
Tuesday, January 20, 2015
at 11:00 am Eastern
January 19, 2015
Lakewood, Colorado – Energy Fuels Inc. (NYSE MKT: UUUU, TSX:
EFR) (“Energy Fuels”) is pleased to announce that Stephen P. Antony,
President and CEO of Energy Fuels, will be presenting at the Noble Financial
Capital Markets Conference on Tuesday, January 20th, 2015 at 11:00
a.m. eastern. The Noble Conference is being held January 18-21st at
Club Med in Sandpiper Bay, Florida.
Energy Fuels recently announced the signing of an
agreement to acquire Uranerz Energy Corporation (NYSE MKT: URZ, TSX:
URZ), thereby creating the largest integrated uranium producer focused on
the United States. A live audio and video webcast of Mr. Antony’s presentation,
along with a copy of the presentation materials, will be available through the
Noble Financial websites: www.noblefcm.com, or
www.nobleresearch.com/D2/2015.htm.
Energy Fuels recommends registering at least 10 minutes prior
to the start of the presentation to ensure timely access. You will require a
Microsoft SilverLight viewer (a free download from the presentation link) to
participate. The webcast and presentation will also be archived for 90 days
following the event.
IMPORTANT INFORMATION FOR INVESTORS AND STOCKHOLDERS
This press release is for informational purposes only and
does not constitute an offer to purchase, a solicitation of an offer to sell the
shares of common stock of Uranerz or a solicitation of any proxy, vote or
approval. Energy Fuels will file with the United States Securities and Exchange
Commission (“SEC”) a registration statement on Form F-4 that will include a
proxy statement of Uranerz that also constitutes a prospectus of Energy Fuels.
Energy Fuels and Uranerz also plan to file with or furnish other documents to
securities regulatory authorities in Canada and the United States regarding the
proposed transaction.
INVESTORS AND STOCKHOLDERS OF URANERZ ARE URGED TO READ THE
PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS THAT WILL BE FILED WITH THE SEC
CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION.
Anyone may obtain copies of these documents when available
free of charge under Energy Fuels’ profile on SEDAR at www.sedar.com or EDGAR at
www.sec.gov, or by accessing Energy Fuels’ website at
www.energyfuels.com under the heading “Investors” and from Energy Fuels directly
by contacting Curtis Moore, Investor Relations: (303) 974-2140. Documents will also be available
free of charge under Uranerz’ profile on EDGAR at www.sec.gov or on SEDAR at www.sedar.com, or by accessing Uranerz’ website at
www.uranerz.com under the heading “Investors” and from Uranerz directly by
contacting Derek Iwanaka, Investor Relations: (800) 689-1659. Energy Fuels,
Uranerz, their respective directors and certain of their executive officers may
be deemed to be participants in the solicitation of proxies from the
shareholders of Uranerz in connection with the proposed transaction. Information
about the directors and executive officers of Uranerz is set forth in its proxy
statement for its 2014 annual meeting of shareholders, which was filed with the
SEC on April 29, 2014. Information about the directors and executive officers of
Energy Fuels can be found in its 2014 management information circular dated
March 26, 2014, which is available at www.sedar.com and www.sec.gov. Other information regarding the participants
in the proxy solicitation and a description of their direct and indirect
interests, by security holdings or otherwise, will be contained in the proxy
statement/prospectus and other relevant materials to be filed with the SEC when
they become available.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain information contained in this news release,
including any information relating to the proposed Transaction, the benefits and
synergies of the Transaction, future opportunities for the Company, the
Company’s ability to increase production through the development of its projects
and the completion of future acquisitions and any other statements regarding
Energy Fuels’ and Uranerz’ future expectations, beliefs, goals or prospects
constitute forward-looking information within the meaning of applicable
securities legislation (collectively, "forward-looking statements"). All
statements in this news release that are not statements of historical fact
(including statements containing the words "expects", "does not expect",
"plans", "anticipates", "does not anticipate", "believes", "intends",
"estimates", "estimates", "projects", "potential", "scheduled", "forecast",
"budget" and similar expressions) should be considered forward-looking
statements. All such forward-looking statements are subject to important risk
factors and uncertainties, many of which are beyond Energy Fuels’ and Uranerz’
ability to control or predict. A number of important factors could cause actual
results or events to differ materially from those indicated or implied by such
forward-looking statements, including without limitation: the parties' ability
to consummate the Transaction; the conditions to the completion of the
Transaction, including the receipt of shareholder and regulatory approvals
required for the Transaction may not be obtained on the terms expected or on the
anticipated schedule; the parties' ability to meet expectations regarding the
timing, completion and accounting and tax treatments of the Transaction; the
volatility of the international marketplace; future uranium prices; the ability
to raise capital to fund project development; the ability to complete future
acquisitions and other risk factors as described in Energy Fuels’ and Uranerz’
most recent annual information forms and annual and quarterly financial
reports.
Energy Fuels and Uranerz assume no obligation to update the
information in this communication, except as otherwise required by law.
Additional information identifying risks and uncertainties is contained in
Energy Fuels’ and Uranerz’ respective filings with the various securities commissions which are available
online at www.sec.gov and www.sedar.com. Forward-looking statements are
provided for the purpose of providing information about the current
expectations, beliefs and plans of the management of each of Energy Fuels and
Uranerz relating to the future. Readers are cautioned that such statements may
not be appropriate for other purposes. Readers are also cautioned not to place
undue reliance on these forward-looking statements, that speak only as of the
date hereof.
About Energy Fuels Inc.
Energy Fuels Inc. is currently America's largest conventional
uranium producer, which is expected to supply approximately 20% of the uranium
produced in the U.S. in 2014. Energy Fuels operates the White Mesa mill, which
is the only conventional uranium mill currently operating in the U.S. The mill
is capable of processing 2,000 tons per day of uranium ore and has an annual
licensed capacity of over 8 million pounds of U3O8. Energy Fuels has projects
located in a number of Western U.S. states, including a producing mine, mines on
standby, and mineral properties in various stages of permitting and development.
Energy Fuels’ common shares are listed on the Toronto Stock Exchange under the
trading symbol “EFR” and on the NYSE MKT under the trading symbol “UUUU”.
Contact Information:
Energy Fuels Inc.
Curtis Moore
Investor
Relations
(303) 974-2140 or Toll free: 1-888-864-2125
investorinfo@energyfuels.com
www.energyfuels.com
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