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 September, 2015.
Commission File Number 001-36204
ENERGY FUELS INC.
(Translation of registrants 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 registrants home country), or under the
rules of the home country exchange on which the registrants 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 registrants 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.
INCORPORATION BY REFERENCE
Exhibit 99.1 included in this report on Form 6-K is expressly
incorporated by reference into this report and is hereby incorporated by
reference as an exhibit to the Registration Statement on Form F-10 of Energy
Fuels Inc. (File No. 333-194916), as amended or supplemented.
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.
|
ENERGY FUELS INC. |
|
|
|
/S/ Stephen P. Antony
|
|
Stephen P. Antony |
Date: September 29, 2015 |
President and Chief Executive Officer |
-2-
INDEX TO EXHIBITS
-3-
ENERGY FUELS INC.
Up to US$15,640,000 of
Common
Shares
Controlled Equity OfferingSM
Sales Agreement
September 29, 2015
Cantor Fitzgerald & Co.
499 Park Avenue
New York,
NY 10022
Ladies and Gentlemen:
Energy
Fuels Inc. (the Company), a company continued under the
Business Corporations Act (Ontario) (the OBCA), confirms
its agreement (this Agreement) with Cantor Fitzgerald & Co. (the
Agent), as follows:
1.
Issuance and Sale of Shares. The Company agrees that, from time to time
during the term of this Agreement, on the terms and subject to the conditions
set forth herein, it may issue and sell through the Agent common shares of the
Company (Common Shares) for aggregate gross proceeds of up to
US$15,640,000 (the Placement Shares); provided, however, that in
no event shall the Company issue or sell through the Agent, acting as agent
and/or principal, such number or dollar amount of Placement Shares that (a)
exceeds the number or dollar amount of Common Shares registered pursuant to the
effective Registration Statement (as defined below) pursuant to which the
offering will be made or (b) exceeds the number or dollar amount of Common
Shares for which the Company has filed a Prospectus Supplement (defined below)
(the lesser of (a) and (b), the Maximum Amount), and provided
further that the market value of Common Shares distributed under any single
Prospectus Supplement (as defined below) shall not exceed 10% of the aggregate
market value of the outstanding Common Shares calculated in accordance with and
as of the date specified in Section 9.1 of National Instrument 44-102 Shelf
Distributions (NI 44-102). Notwithstanding anything to the
contrary contained herein, the parties hereto agree that compliance with the
limitations set forth in this Section 1 and Section 9.1 of NI 44-102 on the
Maximum Amount of Placement Shares issued and sold under this Agreement shall be
the sole responsibility of the Company and that Agent shall have no obligation
in connection with such compliance. The issuance and sale of Placement Shares
through the Agent will be effected pursuant to the Registration Statement (as
defined below) filed by the Company and declared effective by the United States
Securities and Exchange Commission (the Commission) on April 10,
2014, although nothing in this Agreement shall be construed as requiring the
Company to use the Registration Statement to issue Common Shares.
The Company has prepared and filed with the securities commissions or similar
regulatory authorities (collectively, the Canadian Securities
Regulators) in the provinces of British Columbia, Alberta,
Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward
island and Newfoundland and Labrador (collectively, the
Provinces) a final short form base shelf prospectus dated April
9, 2014 relating to the offering of up to an aggregate of US$100,000,000 of
Common Shares, warrants, subscription receipts, preferred shares, units, and
debt securities comprising any combination thereof (together with any documents
incorporated therein by reference, and any supplements or amendments thereto,
the Canadian Base Prospectus) in accordance with the securities
laws applicable in the Provinces and the respective rules, regulations and
orders made thereunder, together with applicable published instruments, notices
and orders of the Canadian Securities Regulators (collectively, the Canadian Securities Laws). The Company has
prepared the Canadian Base Prospectus pursuant to National Instrument 44-101
Short Form Prospectus Distributions and NI 44-102 (together, the
Shelf Procedures). The Company has obtained
from the Ontario Securities Commission, as principal regulator of the Company
under Canadian Securities Laws, evidence that a receipt for the Canadian Base
Prospectus (a Final Receipt) has been issued, or deemed to have
been issued, by each of the Canadian Securities Regulators.
The
Company has prepared and filed with the Commission pursuant to the Canada/U.S.
Multi-Jurisdictional Disclosure System (the MJDS) adopted by the
Canadian Securities Administrators and the Commission, a registration statement
on Form F-10 (Registration No. 333-194916) registering the offering and sale of
up to an aggregate of US$100,000,000 of Common Shares, warrants, subscription
receipts, preferred shares, units, and debt securities comprising any
combination thereof under the U.S. Securities Act of 1933, as amended (together
with the rules and regulations thereunder, the Securities
Act), including the Canadian Base Prospectus (together with
any documents incorporated therein by reference, any supplements or amendments
thereto and with such deletions therefrom and additions or changes thereto as
are permitted or required by Form F-10 and the applicable rules and regulations
of the Commission (the Rules and Regulations)(the U.S.
Base Prospectus)). The Canadian Base Prospectus and the U.S. Base
Prospectus are hereinafter collectively sometimes referred to as the
Base Prospectuses.
The
Company has filed, or will file, (i) with the Canadian Securities Regulators, in
accordance with the Shelf Procedures, a prospectus supplement setting forth the
Shelf Information (as defined below) (including any documents incorporated
therein by reference and any supplements or amendments thereto, the
Canadian Prospectus Supplement), and (ii) with the Commission,
in accordance with General Instruction II.L of Form F-10, the Canadian
Prospectus Supplement (with such deletions therefrom and additions or changes
thereto as are permitted or required by Form F-10 and the applicable Rules and
Regulations, the U.S. Prospectus Supplement). The information,
if any, included in the Canadian Prospectus Supplement that is omitted from the
Canadian Base Prospectus but that is deemed under the Shelf Procedures to be
incorporated by reference into the Canadian Base Prospectus as of each
Applicable Time (as defined in Section 25 hereof), is referred to herein as the
Shelf Information. The U.S. Prospectus Supplement and the
Canadian Prospectus Supplement are hereinafter collectively sometimes referred
to as the Prospectus Supplements.
The
registration statement on Form F-10, including the exhibits thereto and the
documents incorporated by reference therein and including the U.S. Prospectus
(as defined below), as amended or supplemented in connection with the execution
and delivery of this Agreement, is herein called the Registration
Statement. Any reference to any amendment or supplement to the
Registration Statement or the U.S. Prospectus shall be deemed to refer to and
include any documents filed with the Canadian Securities Regulators and the
Commission after the effectiveness of such Registration Statement or the date of
such U.S. Prospectus and prior to the termination of this Agreement and which
are incorporated by reference in such Registration Statement or U.S. Prospectus.
The term Canadian Prospectus shall refer to the Canadian Base
Prospectus, as supplemented by any Canadian Prospectus Supplement relating to
the Placement Shares, including, in each case, the documents incorporated by
reference therein. The term U.S. Prospectus shall refer to the
U.S. Base Prospectus, as supplemented by any U.S. Prospectus Supplement relating
to the Placement Shares, including, in each case, the documents incorporated by
reference therein, including any Issuer Free Writing Prospectus (as defined
below). Any amendment to the Canadian Prospectus, and any amended or
supplemented prospectus or auxiliary material, information, evidence, return,
report, application, statement or document that may be filed by or on behalf of
the Company under the Canadian Securities Laws prior to the termination of this
Agreement that is incorporated into the Canadian Prospectus or, where such
document is deemed to be incorporated by reference into the Canadian Prospectus,
prior to the termination of this Agreement, is referred to herein collectively as the Supplementary Material. The
U.S. Prospectus and the Canadian Prospectus are hereinafter collectively
sometimes referred to as the Prospectuses. For purposes of this
Agreement, all references to the Registration Statement, the U.S. Prospectus or
to any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System, or if applicable, the Interactive Data Electronic Application
system when used by the Commission (collectively, EDGAR).
-2-
2.
Placements. Each time that the Company wishes to issue and sell Placement
Shares hereunder (each, a Placement), it will notify the Agent
by email notice (if receipt of such correspondence is actually acknowledged by
any of the individuals to whom the notice is sent, other than via auto-reply )
or other method mutually agreed to in writing by the parties of the number of
Placement Shares, the time period during which sales are requested to be made,
any limitation on the number of Placement Shares that may be sold on any Trading
Day (as defined below) and any minimum price below which sales may not be made
(a Placement Notice), the form of which is attached hereto as
Schedule 1. The Placement Notice shall originate from any of the individuals
from the Company set forth on Schedule 3 (with a copy to each of the other
individuals from the Company listed on such schedule), and shall be addressed to
each of the individuals from the Agent set forth on Schedule 3, as such Schedule
3 may be amended from time to time by notice in writing by the Company (with
respect to the individuals from the Company) or the Agent (with respect to the
individuals from the Agent). The Placement Notice shall be effective unless and
until (i) in accordance with the notice requirement provided for in Section 4,
the Agent declines to accept the terms contained therein for any reason, in its
sole discretion in accordance with Section 4 below, (ii) the entire amount of
the Placement Shares, either the Maximum Amount under this Agreement, under the
relevant Prospectus Supplement or pursuant to a Placement Notice, have been sold
and settled in accordance with the terms hereof, (iii) the Company suspends or
terminates the Placement Notice in accordance with the notice requirements
provided for in Section 4, (iv) the Company issues a subsequent Placement Notice
with parameters superseding those on the earlier dated Placement Notice, or (v)
this Agreement has been terminated under the provisions of Section 12. The
amount of any discount, commission or other compensation to be paid by the
Company to the Agent in connection with the sale of the Placement Shares shall
be calculated in accordance with the terms set forth in Schedule 2. It is
expressly acknowledged and agreed that neither the Company nor the Agent will
have any obligation whatsoever with respect to a Placement or any Placement
Shares unless and until the Company delivers a Placement Notice to the Agent and
the Agent does not decline such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein and herein. In the event
of a conflict between the terms of this Agreement and the terms of a Placement
Notice, the terms of the Placement Notice will control.
3.
Sale of Placement Shares by Agent. Subject to the provisions of
Section 5(a), the Agent, for the period specified in the Placement Notice
will use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable U.S. state and federal laws, rules and
regulations and, if applicable, the rules of the NYSE MKT, LLC (the
NYSE and, together with the Toronto Stock Exchange (the
TSX), the Exchanges), to sell the Placement
Shares up to the amount specified, and otherwise in accordance with the terms of
such Placement Notice, unless the Placement Notice has been declined, suspended
or otherwise terminated in accordance with the terms of this Agreement. The
Agent will provide written confirmation to the Company to each of the
individuals set forth on Schedule 3 no later than the opening of the Trading Day
immediately following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold on such day,
the average price realized, the compensation payable by the Company to the Agent
pursuant to Schedule 2 with respect to such sales, and the Net Proceeds
(as defined below) payable to the Company, with an itemization of the deductions
made by the Agent (as set forth in Section 5(b)) from the gross proceeds
that it receives from such sales. Subject to the terms of the Placement Notice,
the Agent may sell Placement Shares by any method permitted by law deemed to be
an at-the-market distribution as defined in NI 44-102, including without limitation sales
made directly on the NYSE, on any other existing trading market for the Common
Shares in the United States or to or through a market maker in the United
States. With the prior written consent of the Company, which may be provided in
the terms of a Placement Notice, the Agent may also sell Placement Shares in
privately negotiated transactions in the United States. During the term of this
Agreement, and notwithstanding anything to the contrary herein, the Agent agrees
that in no event will it or any of its affiliates engage in any market making,
bidding, stabilization, over-allotment or other trading activity with regard to
the Common Shares if such activity would be prohibited under Regulation M or
other anti-manipulation rules under the Securities Act and Section 9.1 of NI
44-102. Trading Day means any day on which the Common Shares are
traded on the NYSE.
-3-
4.
Suspension of Sales.
(a)
The Company or the Agent may, upon notice to the other party in writing
(including by email correspondence to each of the individuals of the other Party
set forth on Schedule 3, if receipt of such correspondence is actually
acknowledged by any of the individuals to whom the notice is sent, other than
via auto-reply) or by telephone (confirmed immediately by verifiable facsimile
transmission or email correspondence to each of the individuals of the other
Party set forth on Schedule 3), suspend any sale of Placement Shares (a
Suspension); provided, however, that such Suspension shall not
affect or impair any partys obligations with respect to any Placement Shares
sold hereunder prior to the receipt of such notice. While a Suspension is in
effect any obligation under Sections 7(l), 7(m), and 7(n) with respect to the
delivery of certificates, opinions, or comfort letters to the Agent, shall be
waived, provided, however, that such waiver shall not apply for the
Representation Date (defined below) occurring on the date that the Company files
its Annual Report on Form 40-F, Form 20-F or Form 10-K, as applicable. Each of
the parties agrees that no such notice under this Section 4 shall be effective
against any other party unless it is made to one of the individuals named on
Schedule 3 hereto, as such Schedule may be amended from time to time.
(b)
Notwithstanding any other provision of this Agreement, during any period in
which the Company is (to the Agents knowledge upon receiving notice from the
Company) in possession of material non-public information, the Company and the
Agent agree that (i) no sale of Placement Shares will take place, (ii) the
Company shall not request the sale of any Placement Shares, and (iii) the Agent
shall not be obligated to sell or offer to sell any Placement Shares.
5.
Sale and Delivery to the Agent; Settlement.
(a)
Sale of Placement Shares. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, upon the Agents acceptance of the terms of a Placement Notice, and
unless the sale of the Placement Shares described therein has been declined,
suspended, or otherwise terminated in accordance with the terms of this
Agreement, the Agent, for the period specified in the Placement Notice, will use
its commercially reasonable efforts consistent with its normal trading and sales
practices, applicable law and regulations and the rules of the Exchanges to sell
such Placement Shares up to the amount specified, and otherwise in accordance
with the terms of such Placement Notice. The Company acknowledges and agrees
that (i) there can be no assurance that the Agent will be successful in selling
Placement Shares, (ii) the Agent will incur no liability or obligation to the
Company or any other person or entity if it does not sell Placement Shares for
any reason other than a failure by the Agent to use its commercially reasonable
efforts consistent with its normal trading and sales practices, applicable law
and regulations and the rules of the Exchanges to sell such Placement Shares as
required under this Agreement and (iii) the Agent shall be under no obligation
to purchase Placement Shares on a principal basis pursuant to this Agreement,
except as otherwise agreed by the Agent and the Company.
-4-
(b)
Settlement of Placement Shares. Unless otherwise specified in the
applicable Placement Notice, settlement for sales of Placement Shares will occur
on the third (3rd) Trading Day (or such earlier day as is industry
practice for regular-way trading) following the date on which such sales are
made (each, a Settlement Date). The Agent shall notify the
Company and the Companys transfer agent (which shall include a notification to
each of the individuals set out on Schedule 3) of each sale of Placement Shares
on the date of such sale. The Agent shall initiate Deposit and Withdrawal at
Custodian (DWAC) procedures through the Depositary Trust Company on each
Settlement Date. The amount of proceeds to be delivered to the Company on a
Settlement Date against receipt of the Placement Shares sold (the Net
Proceeds) will be equal to the aggregate sales price received by the
Agent, after deduction for (i) the Agents commission, discount or other
compensation for such sales payable by the Company pursuant to Schedule 2
hereof, (ii) any other amounts due and payable by the Company to the Agent
hereunder pursuant to Section 8 and (iii) any transaction fees imposed by any
governmental or self-regulatory organization in respect of such sales.
(c) Delivery of Placement Shares. On or before each Settlement Date,
the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting the Agents or its designees
account (provided the Agent shall have given the Company written notice of such
designee at least one Trading Day prior to the Settlement Date) at The
Depository Trust Company through its Deposit and Withdrawal at Custodian System
or by such other means of delivery as may be mutually agreed upon by the parties
hereto which in all cases shall be freely tradable, transferable, registered
shares in good deliverable form. On each Settlement Date, the Agent will deliver
the related Net Proceeds in same day funds to an account designated by the
Company on, or prior to, the Settlement Date. The Company agrees that if the
Company, or its transfer agent (if applicable), defaults in its obligation to
deliver Placement Shares on a Settlement Date, the Company agrees that in
addition to and in no way limiting the rights and obligations set forth in
Section 10(a) hereto, and provided that the Agent has complied with its
obligations hereunder, it will (i) hold the Agent harmless against any loss,
claim, damage, or expense (including reasonable legal fees and expenses), as
incurred, arising out of or in connection with such default by the Company, and
(ii) pay to the Agent any commission, discount, or other compensation to which
it would otherwise have been entitled absent such default. Provided, however,
that without limiting Section 10(a) herein, the Company shall not be obligated
to pay to the Agent any commission, discount or other compensation on any
Placement Shares that are not timely delivered due to (i) a suspension or
material limitation in trading in securities generally on the NYSE, (ii) a
general moratorium on commercial banking activities declared by either Canadian
or United States federal or New York State authorities or a material disruption
in securities settlement or clearance services in the United States or Canada;
(iii) an outbreak or escalation of hostilities or acts of terrorism involving
the United States or Canada or a declaration by the United States or Canada of a
national emergency or war; or (iv) any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere.
(d)
Denominations; Registration. Certificates for the Placement
Shares, if any, shall be in such denominations and registered in such names as
the Agent may request in writing at least two full Business Days (as defined
below) before the Settlement Date. The certificates for the Placement Shares, if
any, will be made available by the Company for examination and packaging by the
Agent in The City of New York not later than noon (New York time) on the
Business Day prior to the Settlement Date.
(e)
Limitations on Offering Size. Under no circumstances shall the
Company cause or request the offer or sale of any Placement Shares if, after
giving effect to the sale of such Placement Shares, the aggregate gross sales
proceeds of Placement Shares sold pursuant to this Agreement would exceed the
lesser of (A) together with all sales of Placement Shares under this Agreement,
the Maximum Amount, (B) the amount available for offer and sale under the
currently effective Registration Statement and (C) the amount authorized from time to time to be issued
and sold under this Agreement by the Companys board of directors, a duly
authorized committee thereof or a duly authorized executive committee, and
notified to the Agent in writing. Under no circumstances shall the Company cause
or request the offer or sale of any Placement Shares pursuant to this Agreement
at a price lower than the minimum price authorized by the Exchanges and, from
time to time, by the Companys board of directors, a duly authorized committee
thereof or a duly authorized executive committee, and notified to the Agent in
writing. Further, under no circumstances shall the Company cause or permit the
aggregate offering amount of Placement Shares sold pursuant to this Agreement to
exceed the Maximum Amount or the maximum amount prescribed by Section 9 of NI
44-102.
-5-
6. Representations
and Warranties of the Company. The Company represents and warrants to and
agrees with Agent that as of the date of this Agreement and as of each
Applicable Time:
(a)
Registration Statement and Prospectuses. The Company is a foreign
private issuer (as defined in Rule 405 under the Securities Act) and meets the
requirements for use of Form F-10 under the Securities Act and is eligible for
the use of the Shelf Procedures under Canadian Securities Laws; no order
suspending the trading or distribution of the Common Shares has been issued by
any Canadian Securities Regulator, the Exchanges or Investment Industry
Regulatory Organization of Canada (IIROC), and no proceedings,
for that purpose, have been instituted or are pending or, to the Companys
knowledge, are contemplated by any Canadian Securities Regulator; no stop order
suspending the effectiveness of the Registration Statement has been issued by
the Commission, and no proceedings for that purpose have been instituted or are
pending or to the Companys knowledge, are contemplated by the Commission; the
Registration Statement, including the U.S. Base Prospectus and such amendments
to such Registration Statement as may have been required to the date of this
Agreement, has been prepared by the Company under the applicable provisions of
the Securities Act and has been filed with the Commission; pursuant to Rule
467(b) under the Securities Act, the Registration Statement became effective on
April 10, 2014 (the Effective Date). The Registration Statement
and the Prospectuses and the offer and sale of Placement Shares as contemplated
hereby meet the requirements of NI 44-102 and comply in all material respects
with the provisions thereof and other applicable Canadian Securities Laws. Any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectuses or to be filed as
exhibits to the Registration Statement or the Prospectuses have been so
described or filed. Copies of the Registration Statement, the U.S. Prospectus or
the Canadian Prospectus, and any such amendments or supplements and all
documents incorporated by reference therein that were filed with the Commission
or the Canadian Securities Regulators, as applicable, on or prior to the date of
this Agreement have been delivered, or are available through EDGAR or SEDAR, as
the case may be, to the Agent and its counsel. The U.S. Prospectus and the
Canadian Prospectus will name the Agent as an agent in the section entitled
Plan of Distribution. There are no reports or information that must be filed
or made publicly available in connection with the listing of the Placement
Shares, on the TSX (other than routine post-closing filings) that have not been
filed or made publicly available as required, other than the Canadian Prospectus
Supplement, there are no documents required to be filed with the Canadian
Securities Regulators, in connection with the Canadian Base Prospectus, the
Canadian Prospectus Supplement or the Canadian Prospectus that have not been
filed as required. The Commission has not issued an order preventing or
suspending the use of the U.S. Base Prospectus, any Permitted Free Writing
Prospectus (as defined below) or the U.S. Prospectus relating to the proposed
offering of the Placement Shares and no proceedings for such purpose have been
instituted or are pending or, to the Companys knowledge, are contemplated or
threatened by the Commission. The Company has not distributed and, prior to the
later to occur of each Settlement Date and completion of the distribution of the
Placement Shares, will not distribute any offering material in connection with
the offering or sale of the Placement Shares other than the Registration
Statement and the U.S. Prospectus and any Issuer Free Writing Prospectus to
which the Agent has consented.
-6-
(b)
No Misstatement or Omission. At the respective times each part of the
Registration Statement and each amendment thereto became effective, the
Registration Statement complied in all material respects with the Securities Act
and did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. On the date the Canadian Prospectus Supplement was filed
with the Canadian Securities Regulators, the date the U.S. Prospectus Supplement
was filed with the Commission, at each Applicable Time and on each Settlement
Date, (A) the Canadian Prospectus, together with any Supplementary Material, as
of the date thereof, did and will comply in all material respects with the
requirements of the Canadian Securities Laws pursuant to which it has been filed
and did and will provide full, true and plain disclosure of all material facts
(as defined in the Canadian Securities Laws) relating to the Company and the
Material Subsidiaries (as defined below) (taken as a whole) and to the Placement
Shares and did not and will not contain any misrepresentation (as defined in the
Canadian Securities Laws), and (B) the U.S. Prospectus did and will conform to
the Canadian Prospectus except for such deletions or changes therefrom and
additions thereto as are permitted or required by Form F-10 and the Rules and
Regulations and the U.S. Prospectus did not and will not contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statement therein, in the light of the circumstances under which they were
made, not misleading. The foregoing shall not apply to statements in, or
omissions from, any such document made in reliance upon, and in conformity with,
information furnished to the Company by Agent specifically for use in the
preparation thereof.
(c)
Conformity with Securities Act, Exchange Act and Canadian Securities
Laws. The Registration Statement, each of the Prospectuses, any Issuer Free
Writing Prospectus or any amendment or supplement thereto, and the documents
incorporated by reference in the Registration Statement, either of the
Prospectuses or any amendment or supplement thereto, when such documents were or
are filed with the Commission under the Securities Act or the Exchange Act or
with the Canadian Securities Regulators, or became or become effective under the
Securities Act or the Canadian Securities Laws, as the case may be, conformed or
will conform in all material respects with the requirements of the Securities
Act, the Exchange Act, and the Canadian Securities Laws, as applicable, other
than any non-compliance which would not have a Material Adverse Effect (as
defined below).
(d)
Financial Information. The consolidated financial statements of the
Company included or incorporated by reference in the Registration Statement,
either of the Prospectuses and the Permitted Free Writing Prospectuses, if any,
together with the related notes and schedules, present fairly, in all material
respects, the consolidated financial position of the Company and the Material
Subsidiaries (as defined below) as of the dates indicated and the consolidated
statements of comprehensive loss, shareholders equity and cash flows of the
Company for the periods specified. Such financial statements, schedules, and
notes conform in all material respects with International Financial Reporting
Standards as issued by the International Accounting Standards Board
(IFRS), or if applicable, United States generally accepted
accounting principles (GAAP), applied on a consistent basis
during the periods involved. The other financial and statistical data with
respect to the Company and the Material Subsidiaries (as defined below)
contained or incorporated by reference in the Registration Statement, the
Prospectuses and the Issuer Free Writing Prospectuses, if any, are accurately
and fairly presented in all material respects and prepared on a basis consistent
with the financial statements and books and records of the Company; there are no
financial statements (historical or pro forma) that are required to be included
or incorporated by reference in the Registration Statement or the Prospectuses
that are not included or incorporated by reference as required; the Company and
the Material Subsidiaries (as defined below) do not have any material
liabilities or obligations, direct or contingent (including any off-balance
sheet obligations), not described in the Registration Statement and the
Prospectuses and all disclosures contained or incorporated by reference therein;
and no other financial statements are required to be set forth or to be
incorporated by reference in the Registration Statement or the U.S. Prospectus
or the Issuer Free Writing Prospectuses under the Securities Act or the
Canadian Prospectus under Canadian Securities Laws.
-7-
(e)
Statistical, Industry-Related and Market-Related Data. The statistical,
industry-related and market-related data included in the Registration Statement
and the Prospectuses are based on or derived from sources that the Company
reasonably believes are reliable and accurate, and such data agrees with the
sources from which they are derived.
(f)
Conformity with EDGAR Filing. The U.S. Prospectus delivered to the Agent
for use in connection with the sale of the Placement Shares pursuant to this
Agreement will be identical to the versions of the U.S. Prospectus created to be
transmitted to the Commission for filing via EDGAR, except to the extent
permitted by Regulation S-T.
(g)
Organization. The Company and each of its Material Subsidiaries (as
defined below) are, and will be, duly organized, validly existing as a
corporation and in good standing (where such concept is recognized) under the
laws of their respective jurisdictions of organization. The Company and each of
the Material Subsidiaries are, and will be, duly licensed or qualified as a
foreign corporation for transaction of business and in good standing under the
laws of each other jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such license or
qualification, and have all corporate power and authority necessary to own or
hold their respective properties and to conduct their respective businesses as
described in the Registration Statement and the Prospectuses, except where the
failure to be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, have a material adverse effect or
would reasonably be expected to have a material adverse effect on or affecting
the assets, business, operations, earnings, properties, condition (financial or
otherwise), shareholders equity or results of operations of the Company and the
Material Subsidiaries (as defined below) taken as a whole, or prevent or
materially interfere with consummation of the transactions contemplated hereby
(a Material Adverse Effect).
(h)
Subsidiaries. The subsidiaries set forth on Schedule 4 (collectively, the
Material Subsidiaries), include all of the Companys significant
subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated
by the Commission). Except as set forth in the Registration Statement and in the
Prospectuses and in the agreements noted on Schedule 5, the Company owns,
directly or indirectly, all of the equity interests of the Material Subsidiaries
free and clear of any lien, charge, security interest, encumbrance, right of
first refusal or other restriction, and all the equity interests of the Material
Subsidiaries are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights. Except as set forth in the agreement noted on
Schedule 6, no Material Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such Material Subsidiarys capital stock, from repaying to the
Company any loans or advances to such Material Subsidiary from the Company or
from transferring any of such Material Subsidiarys property or assets to the
Company or any other Subsidiary of the Company.
(i)
Minute Books. Since January 1, 2014, all existing minute books of the
Company and each of the Material Subsidiaries, including all existing records of
all meetings and actions of the board of directors (including, the Audit,
Compensation and Governance and Nominating Committees and other board
committees) and shareholders of the Company (collectively, the
Corporate Records) have been made available
to the Agent and its counsel, and all such Corporate Records are complete in all
material respects. There are no transactions, agreements or other actions of the
Company or any of the Material Subsidiaries that are required to be recorded in
the Corporate Records that are not properly approved and/or recorded in the
Corporate Records. All required filings have been made with the appropriate
government registries and institutions in the Province of Ontario in a timely
fashion under the OBCA, except for such filings where the failure to file
would not have a Material Adverse Effect, either individually or in the
aggregate.
-8-
(j)
No Violation or Default. Neither the Company nor any of the Material
Subsidiaries is (i) in violation of its charter or bylaws or similar
organizational documents; (ii) except as are disclosed in the Registration
Statement and the Prospectuses, in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Material Subsidiaries is a party
or by which the Company or any of the Material Subsidiaries is bound or to which
any of the property or assets of the Company or any of the Material Subsidiaries
are subject; or (iii) except as disclosed in the Registration Statement and the
Prospectuses, in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of each of clauses (ii) and (iii) above, for any such
violation or default that would not, individually or in the aggregate, have a
Material Adverse Effect. To the Companys knowledge, no other party under any
material contract or other material agreement to which it or any of the Material
Subsidiaries is a party is in default in any respect thereunder where such
default would have a Material Adverse Effect.
(k)
No Material Adverse Change. Subsequent to the respective dates as of
which information is given in the Registration Statement, the Prospectuses and
the Permitted Free Writing Prospectuses, if any (including any document deemed
incorporated by reference therein), there has not been (i) any Material Adverse
Effect, (ii) any transaction which is material to the Company and the Material
Subsidiaries taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the
Company or any Material Subsidiary, which is material to the Company and the
Material Subsidiaries taken as a whole, (iv) any material change in the capital
stock or outstanding long-term indebtedness of the Company or any of the
Material Subsidiaries or (v) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company or any Material Subsidiary,
other than in each case above in the ordinary course of business or as otherwise
disclosed in the Registration Statement or Prospectuses (including any document
deemed incorporated by reference therein).
(l)
Capitalization. The issued and outstanding Common Shares have been
validly issued, are fully paid and non-assessable and, other than as disclosed
in the Registration Statement and the Prospectuses, are not subject to any
preemptive rights, rights of first refusal or similar rights. The Company has an
authorized, issued and outstanding capitalization as set forth in the
Registration Statement and the Prospectuses as of the dates referred to therein
(other than the grant of additional options under the Companys existing stock
option plans, or changes in the number of outstanding Common Shares of the
Company due to the issuance of shares upon the exercise or conversion of
securities exercisable for, or convertible into, Common Shares outstanding on
the date hereof) and such authorized capital stock conforms in all material
respects to the description thereof set forth in the Registration Statement and
the Prospectuses. The description of the securities of the Company in the
Registration Statement and the Prospectuses is complete and accurate in all
material respects. Except as disclosed in or contemplated by the Registration
Statement and the Prospectuses, as of the date referred to therein, the Company
does not have outstanding any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or
exchangeable for, or any contracts or commitments to issue or sell, any Common
Shares or other securities.
(m)
Authorization; Enforceability. The Company has full corporate right,
power and authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors rights generally
and by general equitable principles.
-9-
(n)
Authorization of Placement Shares. The Placement Shares, when issued and
delivered pursuant to the terms approved by the board of directors of the
Company or a duly authorized committee thereof, or a duly authorized executive
committee, against payment therefor as provided herein, will be duly and validly
authorized and issued and fully paid and non-assessable, free and clear of any
pledge, lien, encumbrance, security interest or other claim, including any
statutory or contractual preemptive rights, resale rights, rights of first
refusal or other similar rights, and will be of the same class of Common Shares
registered pursuant to Section 12(b) of the Exchange Act. The Placement Shares,
when issued, will conform in all material respects to the description thereof
set forth in or incorporated into the Prospectuses.
(o)
No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance
by the Company of this Agreement, the issuance and sale by the Company of the
Placement Shares, except for (i) the qualification of the Placement Shares for
distribution in the United States from the Canadian Securities
Regulators; and (ii) such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable U.S. state
securities laws or by the bylaws and rules of the Financial Industry Regulatory
Authority, Inc. (FINRA) or the Exchanges in connection with the
sale of the Placement Shares by the Agent.
(p)
No Preferential Rights. Except as set forth in the Registration Statement
and the Prospectuses, (i) and except pursuant to options to purchase Common
Shares pursuant to outstanding options, restricted stock units, warrants or
convertible debentures, no person, as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the Securities Act (each, a
Person), has the right, contractual or otherwise, to cause the
Company to issue or sell to such Person any Common Shares or other securities of
the Company, (ii) no Person has any preemptive rights, resale rights, rights of
first refusal, or any other rights (whether pursuant to a poison pill
provision or otherwise) to purchase any Common Shares or other securities of the
Company, (iii) no Person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and sale of the
Placement Shares, and (iv) no Person has the right, contractual or otherwise, to
require the Company to register under the Securities Act or qualify for
distribution under Canadian Securities Laws any Common Shares or other
securities of the Company, or to include any such Common Shares or other
securities in the Registration Statement or the Prospectuses or the offering
contemplated thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Placement Shares as contemplated
thereby or otherwise.
(q)
Independent Public Accounting Firm. KPMG LLP (the
Accountant), whose report on the consolidated financial
statements of the Company is incorporated by reference into the Registration
Statement and the Prospectuses, are and, during the periods covered by their
report, were (i) an independent registered public accounting firm within the
meaning of the Securities Act and the Public Company Accounting Oversight Board
(United States) and (ii) an independent auditor as required by the Rules of
Professional Conduct of the Chartered Professional Accountants of Ontario and
there has never been a reportable disagreement (within the meaning of National
Instrument 51-102 Continuous Disclosure Obligations) between the
Company and the Accountant (or any former accountant or auditor). To the
Companys knowledge, after due and careful inquiry, the Accountant is not in
violation of the auditor independence requirements of the Sarbanes-Oxley Act of
2002 (the Sarbanes-Oxley Act) or with respect to the
Company.
(r)
Enforceability of Agreements. All agreements between the Company and
third parties expressly referenced in the Registration Statement and the
Prospectuses are legal, valid and binding obligations of the Company enforceable in accordance
with their respective terms, except to the extent that (i) enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors rights generally and by general equitable principles, and
(ii) the indemnification provisions of certain agreements may be limited by
federal, state or provincial securities laws or public policy considerations in
respect thereof, and except for any other potentially unenforceable term that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
-10-
(s)
No Litigation. Except as set forth in the Registration Statement and the
Prospectuses, there are no legal, governmental or regulatory actions, suits or
proceedings pending, nor, to the Companys knowledge, any legal, governmental or
regulatory audits or investigations, to which the Company or a Subsidiary is a
party or to which any property of the Company or any of the Material
Subsidiaries is the subject that, individually or in the aggregate, if
determined adversely to the Company or any of the Material Subsidiaries, could
reasonably be expected to have a Material Adverse Effect or materially and
adversely affect the ability of the Company to perform its obligations under
this Agreement; except as disclosed in the Registration Statement and
Prospectuses, to the Companys knowledge, no such actions, suits or proceedings
are threatened or contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending legal,
governmental or regulatory audits or investigations, actions, suits or
proceedings that are required under the Securities Act or the Canadian
Securities Laws to be described in the Prospectuses that are not so described;
and (ii) there are no contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement that are
not so filed.
(t)
Intellectual Property. Except as disclosed in the Registration Statement
and the Prospectuses, the Company and the Material Subsidiaries own, possess,
license or have other rights to use all foreign and domestic patents, patent
applications, trade and service marks, trade and service mark registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology,
Internet domain names, know-how and other intellectual property (collectively,
the Intellectual Property), necessary for the conduct of their
respective businesses as now conducted except to the extent that the failure to
own, possess, license or otherwise hold adequate rights to use such Intellectual
Property would not, individually or in the aggregate, have a Material Adverse
Effect. Except as disclosed in the Registration Statement and the Prospectuses
(a) there are no rights of third parties to any such Intellectual Property owned
by the Company and the Material Subsidiaries; (b) to the Companys knowledge,
there is no infringement by third parties of any such Intellectual Property; (c)
there is no pending or, to the Companys knowledge, threatened action, suit,
proceeding or claim by others challenging the Companys and the Material
Subsidiaries rights in or to any such Intellectual Property, and the Company is
unaware of any facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (d) there is no pending or, to the Companys
knowledge, threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property; (e) there is no pending
or, to the Companys knowledge, threatened action, suit, proceeding or claim by
others that the Company and the Material Subsidiaries infringe or otherwise
violate any patent, trademark, copyright, trade secret or other proprietary
rights of others; (f) to the Companys knowledge, there is no third-party U.S.
patent or published U.S. patent application which contains claims for which an
Interference Proceeding (as defined in 35 U.S.C. § 135) has been commenced
against any patent or patent application described in the Registration Statement
and the Prospectuses as being owned by or licensed to the Company; and (g) the
Company and the Material Subsidiaries have complied with the terms of each
agreement pursuant to which Intellectual Property has been licensed to the
Company or such Material Subsidiary, and all such agreements are in full force
and effect, except, in the case of any of clauses (a)-(g) above, for any such
infringement by third parties or any such pending or threatened suit, action,
proceeding or claim as would not, individually or in the aggregate, result in a
Material Adverse Effect.
-11-
(u)
Market Capitalization. At the time the Registration Statement was
originally declared effective, and at the time the Companys most recent Annual
Report on Form 40-F was filed with the Commission, the Company met the then
applicable requirements for the use of Form F-10 under the Securities Act.
(v)
No Material Defaults. Neither the Company nor any of the Material
Subsidiaries has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually
or in the aggregate, would have a Material Adverse Effect. The Company has not
filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the
filing of its last Annual Report on Form 40-F, indicating that it (i) has failed
to pay any dividend or sinking fund installment on preferred stock or (ii) has
defaulted on any installment on indebtedness for borrowed money or on any rental
on one or more long-term leases, which defaults, individually or in the
aggregate, would have a Material Adverse Effect.
(w)
Certain Market Activities. Neither the Company, nor any of the Material
Subsidiaries, nor to the knowledge of the Company any of their respective
directors or officers has taken, directly or indirectly, any action designed, or
that has constituted or might reasonably be expected to cause or result in,
under the Exchange Act, Canadian Securities Laws or otherwise, the
stabilization, maintenance or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Placement Shares.
(x)
Broker/Dealer Relationships. Neither the Company nor any of the Material
Subsidiaries or any related entities (i) is required to register as a broker
or dealer in accordance with the provisions of the Exchange Act or (ii)
directly or indirectly through one or more intermediaries, controls or is a
person associated with a member or associated person of a member (within the
meaning set forth in the FINRA Manual).
(y)
No Reliance. The Company has not relied upon the Agent or legal counsel
for the Agent for any legal, tax or accounting advice in connection with the
offering and sale of the Placement Shares.
(z)
Taxes. The Company and each of the Material Subsidiaries have filed all
federal, state, provincial, local and foreign tax returns which have been
required to be filed and paid all taxes shown thereon through the date hereof,
to the extent that such taxes have become due and are not being contested in
good faith, except where the failure to so file or pay would not have a Material
Adverse Effect. Except as otherwise disclosed in or contemplated by the
Registration Statement and the Prospectuses, no tax deficiency has been
determined adversely to the Company or any of the Material Subsidiaries which
has had, individually or in the aggregate, a Material Adverse Effect. The
Company has no knowledge of any federal, state, provincial or other governmental
tax deficiency, penalty or assessment which has been or might be asserted or
threatened against it which would have a Material Adverse Effect.
(aa)
Title to Real and Personal Property. Except as set forth in the
Registration Statement and the Prospectuses, the Company and the Material
Subsidiaries have good and marketable title in fee simple to all items of real
property owned by them, good and valid title to all personal property described
in the Registration Statement or Prospectuses as being owned by them that are
material to the businesses of the Company or such Material Subsidiary, in each
case free and clear of all liens, encumbrances and claims, except those that (i)
do not materially interfere with the use made and proposed to be made of such
property by the Company and any of the Material Subsidiaries or (ii) would not,
individually or in the aggregate, have a Material Adverse Effect. Any real or
personal property described in the Registration Statement or Prospectuses as
being leased by the Company and any of the Material Subsidiaries is held by them
under valid, existing and enforceable leases, except those that (A) do not materially interfere with the use made or proposed to be made
of such property by the Company or any of the Material Subsidiaries or (B) would
not, individually or in the aggregate, have a Material Adverse Effect. Each of
the properties of the Company and the Material Subsidiaries complies with all
applicable codes, laws and regulations (including, without limitation, building
and zoning codes, laws and regulations and laws relating to access to such
properties), except if and to the extent disclosed in the Registration Statement
or Prospectuses or except for such failures to comply that would not,
individually or in the aggregate, interfere in any material respect with the use
made and proposed to be made of such property by the Company and the Material
Subsidiaries or otherwise have a Material Adverse Effect. None of the Company or
the Material Subsidiaries has received from any governmental or regulatory
authorities any notice of any condemnation of, or zoning change affecting, the
properties of the Company and the Material Subsidiaries, and the Company knows
of no such condemnation or zoning change which is threatened, except for such
that would not interfere in any material respect with the use made and proposed
to be made of such property by the Company and the Material Subsidiaries or
otherwise have a Material Adverse Effect, individually or in the aggregate.
-12-
(bb)
Environmental Laws. Except as set forth in the Registration Statement or
the Prospectuses:
(i) each of the Company and the
Material Subsidiaries is in compliance in all material respects with all
applicable federal, provincial, state, municipal and local laws, statutes,
ordinances, bylaws and regulations and orders, directives and decisions rendered
by any ministry, department or administrative or regulatory agency, domestic or
foreign (the Environmental Laws) relating to the protection of the
environment, occupational health and safety or the processing, use, treatment,
storage, disposal, discharge, transport or handling of any pollutants,
contaminants, chemicals or industrial, toxic or hazardous wastes or substance,
including any uranium or derivatives thereof (the Hazardous
Substances), except where such non-compliance would not have a Material
Adverse Effect, either individually or in the aggregate;
(ii) each of the Company and the
Material Subsidiaries has obtained all licenses, permits, approvals, consents,
certificates, registrations and other authorizations under all applicable
Environmental Laws (the Environmental Permits) necessary as at the date hereof
for the operation of the businesses carried on or proposed to be commenced by
the Company and the Material Subsidiaries and each Environmental Permit is
valid, subsisting and in good standing and to the knowledge of Company neither
the Company nor the Material Subsidiaries is in default or breach of any
Environmental Permit which would have a Material Adverse Effect, and no
proceeding is pending or, to the knowledge of the Company or the Material
Subsidiaries, threatened, to revoke or limit any Environmental Permit;
(iii) neither the Company nor the
Material Subsidiaries has used, except in compliance with all Environmental Laws
and Environmental Permits, and other than as may be incidental to mineral
resource exploration, development, mining, recovery, processing or milling, any
property or facility which it owns or leases or previously owned or leased, to
generate, manufacture, process, distribute, use, treat, store, dispose of,
transport or handle any Hazardous Substance;
(iv) neither the Company nor the
Material Subsidiaries (including, if applicable, any predecessor companies) has
received any notice of, or been prosecuted for an offence alleging,
non-compliance with any Environmental Law that would have a Material Adverse
Effect, and neither the Company nor the Material Subsidiaries (including, if
applicable, any predecessor companies) has settled any allegation of
non-compliance that would have a Material Adverse Effect short of prosecution.
There are no orders or directions relating to environmental matters requiring
any material work, repairs, construction or capital expenditures to be made with
respect to any of the assets of the Company or the Material Subsidiaries, nor has the Company or
the Material Subsidiaries received notice of any of the same; and
-13-
(v) neither the Company nor the
Material Subsidiaries has received any notice wherein it is alleged or stated
that the Company or the Material Subsidiaries is potentially responsible for a
federal, provincial, state, municipal or local clean-up site or corrective
action under any Environmental Laws. Neither the Company nor the Material
Subsidiaries has received any request for information in connection with any
federal, state, municipal or local inquiries as to disposal sites.
(cc)
Disclosure Controls. The Company and each of the Material Subsidiaries
maintain systems of internal accounting controls applicable under IFRS, or if
applicable under GAAP, sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with managements general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with managements general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Companys internal control over financial
reporting is effective and the Company is not aware of any material weaknesses
in its internal control over financial reporting (other than as set forth in the
Prospectuses). Since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Registration Statement and
the Prospectuses, there has been no change in the Companys internal control
over financial reporting that has materially affected, or is reasonably likely
to materially affect, the Companys internal control over financial reporting
(other than as set forth in the Prospectuses and in the Companys Managements
Discussion and Analysis for the period ended June 30, 2015). The Company has
established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15 and 15d-15) for the Company and designed such disclosure controls and
procedures to ensure that material information relating to the Company and each
of the Material Subsidiaries is made known to the certifying officers by others
within those entities, particularly during the period in which the Companys
Annual Report on Form 40-F, or if applicable on Form 10-K, is being prepared or
during the period in which financial statements will be filed or furnished with
the Commission on Form 6-K, or if applicable on Form 10-Q. The Companys
certifying officers have evaluated the effectiveness of the Companys controls
and procedures as of a date within 90 days prior to the filing date of the Form
40-F, or if applicable on Form 10-K, for the fiscal year most recently ended
(such date, the Evaluation Date). The Company presented
in its Form 40-F, or if applicable on Form 10-K, for the fiscal year most
recently ended the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date and the disclosure controls and procedures
are effective. Since the Evaluation Date, there have been no significant changes
in the Companys internal controls (as such term is defined in Item 307(b) of
Regulation S-K under the Securities Act) or, to the Companys knowledge, in
other factors that could significantly affect the Companys internal controls,
except that the Company has limited the scope of its disclosure controls and
procedures and internal control over financial reporting for its quarter ended
June 30, 2015 to exclude controls, policies and procedures of a business that
the Company acquired not more than 365 days before the last day of the period
covered by the interim filing.
(dd)
Certification of Disclosure. There is and has been no failure on the part
of the Company or any of the Companys directors or officers, in their
capacities as such, to comply in all material respects with any applicable
provisions of the Sarbanes-Oxley Act, National Instrument 52-109
(Certification of Disclosure in Issuers Annual and Interim Filings)
(NI 52-109) and the rules and regulations promulgated thereunder. Each
of the principal executive officer and the principal financial officer of the
Company (or each former principal executive officer of the Company and each
former principal financial officer of the Company as applicable) and each
certifying officer of the Company (or each former certifying officer of the Company and each former
certifying officer of the Company as applicable) has made all certifications
required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all
reports, schedules, forms, statements and other documents required to be filed
by it or furnished by it to the Commission and as required to be made and filed
by NI 52-109. For purposes of the preceding sentence, principal executive
officer and principal financial officer shall have the meanings given to such
terms in the Sarbanes-Oxley Act and certifying officer shall have the meanings
given to such term in NI 52-109.
-14-
(ee)
Mining Rights. The White Mesa Mill, Henry Mountains Complex, Roca Honda
Project, Arizona Strip (excluding the Kanab North mine), Daneros Mine, Sheep
Mountain Project, Gas Hills Project, La Sal Project, Juniper Ridge Project,
Whirlwind Mine, Sage Plain Project, Copper King Project, Nichols Ranch, West
North Butte, Arkose Mining Project, North Rolling Pin, and Reno Creek Property
as described in the Registration Statement and the Prospectus (collectively, the
Material Properties") are the only resource
properties currently material to the Company in which the Company or the
Material Subsidiaries have an interest; the Company or through the Material
Subsidiaries, hold either freehold title, mining leases, mining concessions,
mining claims, exploration permits, prospecting permits or participant interests
or other conventional property or proprietary interests or rights, recognized in
the jurisdiction in which the Material Properties are located, in respect of the
ore bodies and minerals located on the Material Properties in which the Company
(through the applicable Subsidiary) has an interest under valid, subsisting and
enforceable title documents or other recognized and enforceable agreements or
instruments, sufficient to permit the Company (through the applicable
Subsidiary) to explore for and exploit the minerals relating thereto; all leases
or claims and permits relating to the Material Properties in which the Company
(through the applicable Subsidiary) has an interest or right have been validly
located and recorded in accordance with all applicable laws and are valid and
subsisting; except as disclosed in the Registration Statement and the
Prospectuses, the Company (through the applicable Subsidiary) has all necessary
surface rights, access rights and other necessary rights and interests relating
to the Material Property in which the Company (through the applicable
Subsidiary) have an interest granting the Company (through the applicable
Subsidiary) the right and ability to explore for and exploit minerals, ore and
metals for development and production purposes as are appropriate in view of the
rights and interest therein of the Company or the applicable Subsidiary, with
only such exceptions as do not materially interfere with the current use made by
the Company or the applicable Subsidiary of the rights or interest so held, and
each of the proprietary interests or rights and each of the documents,
agreements and instruments and obligations relating thereto referred to above is
currently in good standing in all respects in the name of the Company or the
applicable Subsidiary; except as disclosed in the Prospectuses, the Company and
the Material Subsidiaries do not have any responsibility or obligation to pay
any commission, royalty, license, fee or similar payment to any person with
respect to the property rights thereof, except where such fee or payment would
not have a Material Adverse Effect, either individually or in the aggregate;
(i) the Company or the applicable
Subsidiary holds direct interests in the Material Properties, as described in
the Registration Statement and the Prospectus (the Project
Rights), under valid, subsisting and enforceable agreements or
instruments, to the knowledge of the Company and all such agreements and
instruments in connection with the Project Rights are valid and subsisting and
enforceable in accordance with their terms;
(ii) the Company and the Material
Subsidiaries have identified all the material permits, certificates, and
approvals (collectively, the Permits) which are or will be
required for the exploration, development and eventual or actual operation of
the Material Properties, which Permits include but are not limited to
environmental assessment certificates, water licenses, land tenures, rezoning or
zoning variances and other necessary local, provincial, state and federal
approvals; and, except as disclosed in the Registration Statement and the
Prospectuses, the appropriate Permits have either been received, applied for, or the processes to obtain such Permits
have been or will in due course be initiated by the Company or the applicable
Subsidiaries; and, except as disclosed in the Registration Statement and the
Prospectuses, neither the Company nor the applicable Subsidiaries know of any
issue or reason why the Permits should not be approved and obtained in the
ordinary course;
-15-
(iii) all assessments or other work
required to be performed in relation to the material mining claims and the
mining rights of the Company and the applicable Subsidiary in order to maintain
their respective interests therein, if any, have been performed to date and,
except as disclosed in the Registration Statement and Prospectuses, the Company
and the applicable Subsidiary have complied in all material respects with all
applicable governmental laws, regulations and policies in this regard as well as
with regard to legal, contractual obligations to third parties in this regard
except in respect of mining claims and mining rights that the Company and the
applicable Subsidiary intend to abandon or relinquish and except for any
non-compliance which would not either individually or in the aggregate have a
Material Adverse Effect; all such mining claims and mining rights are in good
standing in all respects as of the date of this Agreement;
(iv) except as disclosed in the
Registration Statement and the Prospectuses, all mining operations on the
properties of the Company and the Material Subsidiaries (including, without
limitation, the Material Properties) have been conducted in all respects in
accordance with good mining and engineering practices and all applicable
workers compensation and health and safety and workplace laws, regulations and
policies have been duly complied with;
(v) except as disclosed in the
Registration Statement and the Prospectuses, there are no environmental audits,
evaluations, assessments, studies or tests relating to the Company or the
Material Subsidiaries except for ongoing assessments conducted by or on behalf
of the Company and the Material Subsidiaries in the ordinary course;
(vi) the Company made available to the
respective authors thereof prior to the issuance of all of the applicable
technical reports relating to the Material Properties (the
Reports), for the purpose of preparing the Reports, as
applicable, all information requested, and no such information contained any
material misrepresentation as at the relevant time the relevant information was
made available;
(vii) the Reports complied in all
material respects with the requirements of NI 43-101 as at the date of each such
Report; and
(viii) the title reports listed on
Exhibit 6(ee) attached hereto (the Title
Opinions) are to the knowledge of the Company, correct and
complete in all material respects on the date hereof, except as in respect of
concessions which are (i) not material, or (ii) were permitted to expire or were
sold in the ordinary course of business, as described in the Registration
Statement or Prospectus.
(ff)
Finders Fees. Neither the Company nor any of the Material Subsidiaries
has incurred any liability for any finders fees, brokerage commissions or
similar payments in connection with the transactions herein contemplated, except
as may otherwise exist with respect to Agent pursuant to this Agreement.
(gg)
Labor Disputes. No labor disturbance by or dispute with employees of the
Company or any of the Material Subsidiaries exists or, to the knowledge of the
Company, is threatened that could reasonably be expected to have resulted in a
Material Adverse Effect.
(hh)
Local Disputes. Except as disclosed in the Registration Statement and the
Prospectuses, no dispute between the Company and any local, native or indigenous
group exists, or to the Companys knowledge, is threatened or imminent with respect to
any of the Companys properties or exploration activities that could reasonably
be expected to have a Material Adverse Effect.
-16-
(ii)
Investment Company Act. Neither the Company nor any of the Material
Subsidiaries is or, after giving effect to the offering and sale of the
Placement Shares and the application of the proceeds thereof as described in the
Registration Statement and the Prospectuses, will be an investment company or
an entity controlled by an investment company, as such terms are defined in
the Investment Company Act of 1940, as amended (the Investment Company
Act).
(jj)
Operations. The operations of the Company and the Material Subsidiaries
are and have been conducted at all times in compliance with applicable financial
record keeping and reporting requirements of the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act (Canada), the Corruption of
Foreign Public Officials Act (Canada) and applicable rules and regulations
thereunder, and the money laundering statutes of all applicable jurisdictions,
the rules and regulations thereunder and any related or similar applicable
rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the Money Laundering Laws);
and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of the Material
Subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(kk)
Off-Balance Sheet Arrangements. There are no transactions, arrangements
and other relationships between and/or among the Company, and/or, to the
knowledge of the Company, any of its affiliates and any unconsolidated entity,
including, but not limited to, any structural finance, special purpose or
limited purpose entity (each, an Off Balance Sheet Transaction)
that could reasonably be expected to affect materially the Companys liquidity
or the availability of or requirements for its capital resources.
(ll)
Underwriter Agreements. The Company is not a party to any agreement with
an agent or underwriter for any other at-the-market or continuous equity or
debt transaction.
(mm)
ERISA. To the knowledge of the Company, each material employee benefit
plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (ERISA), that is maintained,
administered or contributed to by the Company or any of its affiliates for
employees or former employees of the Company and any of the Material
Subsidiaries has been maintained in material compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as
amended (the Code); no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which
would result in a material liability to the Company with respect to any such
plan excluding transactions effected pursuant to a statutory or administrative
exemption; and for each such plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, no accumulated funding
deficiency as defined in Section 412 of the Code has been incurred, whether or
not waived, and the fair market value of the assets of each such plan (excluding
for these purposes accrued but unpaid contributions) exceeds the present value
of all benefits accrued under such plan determined using reasonable actuarial
assumptions.
(nn)
Forward Looking Statements. No forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act
and no forward-looking information within the meaning of Section 1(1) of the
Ontario Securities Act) (collectively a Forward Looking
Statement) contained or incorporated by reference in the Registration
Statement and the Prospectuses has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
-17-
(oo)
Agent Purchases. The Company acknowledges and agrees that Agent has
informed the Company that the Agent may, to the extent permitted under the
Securities Act, Exchange Act and FINRA, purchase and sell Common Shares for its
own account while this Agreement is in effect, provided, that (i) no such
purchase or sales shall take place while a Placement Notice is in effect (except
to the extent each Agent may engage in sales of Placement Shares purchased or
deemed purchased from the Company as a riskless principal or in a similar
capacity) and (ii) the Company shall not be deemed to have authorized or
consented to any such purchases or sales by the Agent.
(pp)
Margin Rules. Neither the issuance, sale and delivery of the Placement
Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Prospectuses will violate Regulation T, U
or X of the Board of Governors of the Federal Reserve System or any other
regulation of such Board of Governors.
(qq)
Insurance. The Company and each of the Material Subsidiaries carry, or
are covered by, insurance in such amounts and covering such risks as the Company
and each of the Material Subsidiaries reasonably believe are adequate for the
conduct of their properties and as is customary for companies engaged in similar
businesses in similar industries.
(rr)
No Improper Practices. (i) Neither the Company nor, to the Companys
knowledge, the Material Subsidiaries, nor to the Companys knowledge, any of
their respective executive officers has, in the past five years, made any
unlawful contributions to any candidate for any political office (or failed
fully to disclose any contribution in violation of law) or made any contribution
or other payment to any official of, or candidate for, any federal, state,
provincial, municipal, or foreign office or other person charged with similar
public or quasi-public duty in violation of any law or of the character required
to be disclosed in the Registration Statement and the Prospectuses; (ii) no
relationship, direct or indirect, exists between or among the Company or, to the
Companys knowledge, any Material Subsidiary or any affiliate of any of them, on
the one hand, and the directors, officers and shareholders of the Company or, to
the Companys knowledge, any Material Subsidiary, on the other hand, that is
required by the Securities Act or Canadian Securities Laws to be described in
the Registration Statement and the Prospectuses that is not so described; (iii)
no relationship, direct or indirect, exists between or among the Company or any
Material Subsidiary or any affiliate of them, on the one hand, and the
directors, officers, or shareholders of the Company or, to the Companys
knowledge, any Material Subsidiary, on the other hand, that is required by the
rules of FINRA (or Canadian equivalent thereof) to be described in the
Registration Statement and the Prospectuses that is not so described; (iv)
except as described in the Prospectuses, there are no material outstanding loans
or advances or material guarantees of indebtedness by the Company or, to the
Companys knowledge, any Material Subsidiary to or for the benefit of any of
their respective officers or directors or any of the members of the families of
any of them; and (v) the Company has not offered, or caused any placement agent
to offer, Common Shares to any person with the intent to influence unlawfully
(A) a customer or supplier of the Company or any Material Subsidiary to alter
the customers or suppliers level or type of business with the Company or any
Material Subsidiary or (B) a trade journalist or publication to write or publish
favorable information about the Company or any Material Subsidiary or any of
their respective products or services, and, (vi) neither the Company nor any
Material Subsidiary nor, to the Companys knowledge, any employee or agent of
the Company or any Material Subsidiary has made any payment of funds of the
Company or any Material Subsidiary or received or retained any funds in
violation of any law, rule or regulation (including, without limitation, the
Foreign Corrupt Practices Act of 1977 and the Corruption of Foreign Public
Officials Act (Canada)), which payment, receipt or retention of funds is of
a character required to be disclosed in the Registration Statement or the
Prospectuses.
(ss)
Status Under the Securities Act. The Company was not and is not an
ineligible issuer as defined in Rule 405 under the Securities Act at the times
specified in Rules 164 and 433 under the Securities Act in connection with the
offering of the Placement Shares.
-18-
(tt)
No Misstatement or Omission in an Issuer Free Writing Prospectus. Each
Issuer Free Writing Prospectus, as of its issue date and as of each Applicable
Time, did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration
Statement or either of the Prospectuses, including any incorporated document
deemed to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions from any Issuer
Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by the Agent specifically for use therein.
(uu)
No Marketing Materials. The Company has not provided any marketing
materials (as such term is defined in National Instrument 41-101 - General
Prospectus Requirements) to any potential investors of Placement Shares.
(vv)
No Conflicts. Neither the execution of this Agreement, nor the issuance,
offering or sale of the Placement Shares, nor the consummation of any of the
transactions contemplated herein and therein, nor the compliance by the Company
with the terms and provisions hereof and thereof will conflict with, or will
result in a breach of, any of the terms and provisions of, or has constituted or
will constitute a default under, or has resulted in or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any contract or other agreement
to which the Company may be bound or to which any of the property or assets of
the Company is subject, except (i) such conflicts, breaches or defaults as may
have been waived, and (ii) such conflicts, breaches and defaults that could not
reasonably be expected to have a Material Adverse Effect; nor will such action
result (x) in any violation of the provisions of the organizational or governing
documents of the Company, or (y) in any violation of the provisions of any
statute or any order, rule or regulation applicable to the Company or of any
court or of any federal, state, provincial or other regulatory authority or
other government body having jurisdiction over the Company, except such
violations that could not reasonably be expected to have a Material Adverse
Effect, either individually or in the aggregate.
(ww)
Sanctions. (i) The Company represents that, neither the Company nor any
of the Material Subsidiaries (collectively, the Entity) nor, to
the Companys knowledge, any director, officer, employee, agent, affiliate or
representative of the Entity, is a government, individual, or entity (in this
paragraph (ww), Person) that is, or is owned or controlled by a
Person that is:
(A)
the subject of any sanctions administered or enforced by the U.S. Department of
Treasurys Office of Foreign Assets Control, the United Nations Security
Council, the European Union, Her Majestys Treasury, the Office of the
Superintendent of Financial Institutions (Canada), or pursuant to the Special
Economic Measures Act (Canada) or other relevant sanctions authority or
relevant statute, rule, or regulation (collectively, Sanctions),
nor
(B)
located, organized or resident in a country or territory that is the subject of
Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya,
North Korea, Russia, Sudan, Syria, Ukraine and Zimbabwe).
(ii) The Entity represents and
covenants that it will not, directly or indirectly, use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person:
(A)
to fund or facilitate any activities or business of or with any Person or in any
country or territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or
-19-
(B)
in any other manner that will result in a violation of Sanctions by any Person
(including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The Entity represents and
covenants that, except as detailed in the Registration Statement and the
Prospectuses, for the past 5 years, it has not knowingly engaged in, is not now
knowingly engaged in, and will not engage in, any dealings or transactions with
any Person, or in any country or territory, that at the time of the dealing or
transaction is or was the subject of Sanctions.
(xx)
Stock Transfer Taxes. On each Settlement Date, all stock transfer or
other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Placement Shares to be sold
hereunder will be, or will have been, fully paid or provided for by the Company
and all laws imposing such taxes will be or will have been fully complied with.
(yy)
Compliance with Laws. Except as disclosed in the Registration Statement
and the Prospectuses, the Company has not been advised, and has no reason to
believe, that it and each of the Material Subsidiaries are not conducting
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, except where failure to be so
in compliance would not result in a Material Adverse Effect.
(zz)
Compliance with NI 43-101. The Company is in compliance, in all material
respects, with the provisions of NI 43-101 Standards of Disclosure for
Mineral Projects (NI 43-101) and has filed all technical reports required
thereby and, at the time of filing, all such reports complied, in all material
respects, with the requirements of NI 43-101; all scientific and technical
information disclosed in the Registration Statement and Prospectus: (i) is based
upon information prepared, reviewed and/or verified by or under the supervision
of a qualified person (as such term is defined in NI 43-101), (ii) has been
prepared and disclosed in accordance with Canadian industry standards set forth
in NI 43-101, and (iii) was true, complete and accurate in all material respects
at the time of filing.
(aaa)
Filings. Since January 1, 2014, the Company has filed all documents or
information required to be filed by it under Canadian Securities Laws, the
Securities Act, the Exchange Act, the Rules and Regulations and the rules,
regulations and policies of the Exchanges, except where the failure to file such
documents or information will not have a Material Adverse Effect, either
individually or in the aggregate; all material change reports, annual
information forms, financial statements, management proxy circulars and other
documents filed by or on behalf of the Company with the Exchanges, the
Commission and the Canadian Securities Regulators, as of its date, did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading and did
not contain a misrepresentation (as defined under Canadian Securities Laws) at
the time at which it was filed; the Company has not filed any confidential
material change report or any document requesting confidential treatment with
any securities regulatory authority or regulator or any exchange that at the
date hereof remains confidential.
(bbb)
Exchange Registration. The Common Shares are registered pursuant to
Section 12(b) of the Exchange Act and are accepted for trading on the NYSE under
the symbol UUUU and the TSX under the symbol EFR, and the Company has taken
no action designed to terminate the registration of the Common Shares under the
Exchange Act or delisting the Common Shares from either of the Exchanges, nor,
except as disclosed in the Registration Statement and the Prospectuses, has the
Company received any notification that the Commission, the Canadian Securities
Regulators or either of the Exchanges is contemplating terminating such
registration or listing. Except as disclosed in the Registration Statement and
the Prospectuses, the Company has complied in all material respects with the
applicable requirements of the Exchanges for maintenance of inclusion of the
Common Shares thereon. The Company has obtained all necessary consents, approvals,
authorizations or orders of, or filing, notification or registration with, the
Exchanges, the Commission and the Canadian Securities Regulators, where
applicable, required for the listing and trading of the Placement Shares,
subject only to satisfying their standard listing and maintenance requirements.
The Company has no reason to believe that it will not in the foreseeable future
continue to be in compliance with all such listing and maintenance requirements
of each Exchange.
-20-
Any
certificate signed by an officer of the Company and delivered to the Agent or to
counsel for the Agent pursuant to or in connection with this Agreement shall be
deemed to be a representation and warranty by the Company, as applicable, to the
Agent as to the matters set forth therein.
7.
Covenants of the Company. The Company covenants and agrees with Agent
that:
(a) Registration Statement and
Canadian Prospectus Amendments. After the date of this Agreement and during
any period in which a U.S. Prospectus or Canadian Prospectus relating to any
Placement Shares is required to be delivered by Agent under the Securities Act
or Canadian Securities Laws (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company
will notify the Agent promptly of the time when any subsequent amendment to the
Registration Statement, other than documents incorporated by reference, has been
filed with the Commission or the Canadian Securities Regulators and/or has
become effective or any subsequent supplement to the U.S. Prospectus or Canadian
Prospectus has been filed and of any request by the Commission or the Canadian
Securities Regulators for any amendment or supplement to the Registration
Statement, U.S. Prospectus or Canadian Prospectus, as applicable, or for
additional information, (ii) the Company will prepare and file with the
Commission or Canadian Securities Regulators, promptly upon the Agents request,
any amendments or supplements to the Registration Statement, U.S. Prospectus or
the Canadian Prospectus, as applicable, that, in the Agents reasonable opinion,
may be necessary or advisable in connection with the distribution of the
Placement Shares by the Agent (provided, however, that the failure of the Agent
to make such request shall not relieve the Company of any obligation or
liability hereunder, or affect the Agents right to rely on the representations
and warranties made by the Company in this Agreement, (iii) the Company will not
file any amendment or supplement to the Registration Statement, U.S. Prospectus
or Canadian Prospectus relating to the Common Shares or a security convertible
into the Common Shares unless a copy thereof has been submitted to Agent within
a reasonable period of time before the filing and the Agent has not objected
thereto (provided, however, that the failure of the Agent to make such objection
shall not relieve the Company of any obligation or liability hereunder, or
affect the Agents right to rely on the representations and warranties made by
the Company in this Agreement) and the Company will furnish to the Agent at the
time of filing thereof a copy of any document that upon filing is deemed to be
incorporated by reference into the Registration Statement, U.S. Prospectus or
Canadian Prospectus, except for those documents available via EDGAR or SEDAR, as
applicable; and (iv) the Company will cause each amendment or supplement to the
U.S. Prospectus or the Canadian Prospectus to be filed with the Commission or
the Canadian Securities Regulators as required pursuant to applicable Canadian
Securities Laws and the provisions of Form F-10, or if Form F-10 is not
available such other form as may be available, or, in the case of any document
to be incorporated therein by reference, to be filed with the Commission as
required pursuant to the Exchange Act or applicable Canadian Securities Laws,
within the time period prescribed (the determination to file or not file any
amendment or supplement with the Commission under this Section 7(a), based on
the Companys reasonable opinion or reasonable objections, shall be made
exclusively by the Company).
(b)
Notice of Stop Orders. The Company will advise the Agent, promptly after
it receives notice or obtains knowledge thereof, of the issuance or threatened
issuance by the Commission, the Exchanges, IIROC or the Canadian Securities
Regulators of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and it will promptly use
its commercially reasonable efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such a stop order should be issued. The Company will
advise the Agent promptly after it receives any request by the Commission or the
Canadian Securities Regulators for any amendments to the Registration Statement
or any amendment or supplements to the U.S. Prospectus, Canadian Prospectus or
any Issuer Free Writing Prospectus or for additional information related to the
offering of the Placement Shares or for additional information related to the
Registration Statement, the U.S. Prospectus, the Canadian Prospectus or any
Issuer Free Writing Prospectus.
-21-
(c)
Delivery of U.S. Prospectus; Subsequent Changes. During any period in
which the U.S. Prospectus or the Canadian Prospectus relating to the Placement
Shares is required to be delivered by the Agent under the Securities Act or
Canadian Securities Laws with respect to the offer and sale of the Placement
Shares, (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act), the Company will comply with all
requirements imposed upon it by the Securities Act and Canadian Securities Laws,
as from time to time in force, and to file on or before their respective due
dates all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission or the Canadian Securities
Regulators pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision
of or under the Exchange Act or Canadian Securities Laws. If the Company has
omitted any information from the Registration Statement pursuant to Rule 430B
under the Securities Act, it will use its best efforts to comply with the
provisions of and make all requisite filings with the Commission pursuant to
said Rule 430B and to notify the Agent promptly of all such filings. If during
such period any event occurs as a result of which the U.S. Prospectus or the
Canadian Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the
Registration Statement or U.S. Prospectus to comply with the Securities Act or
the Canadian Prospectus to comply with applicable Canadian Securities Laws, the
Company will promptly notify Agent to suspend the offering of Placement Shares
during such period and the Company will promptly amend or supplement the
Registration Statement, U.S. Prospectus or the Canadian Prospectus (at the
expense of the Company) so as to correct such statement or omission or effect
such compliance.
(d)
Listing of Placement Shares. During any period in which the U.S.
Prospectus or the Canadian Prospectus relating to the Placement Shares is
required to be delivered by the Agent under the Securities Act or Canadian
Securities Law, as applicable, with respect to the offer and sale of the
Placement Shares, the Company will use its reasonable best efforts to cause the
Placement Shares to be listed on each Exchange.
(e)
Delivery of Registration Statement and U.S. Prospectus. The Company will
furnish to the Agent and its counsel (at the expense of the Company) copies of
the Registration Statement, the U.S. Prospectus and the Canadian Prospectus
(including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement, U.S. Prospectus or the Canadian
Prospectus that are filed with the Commission or the Canadian Securities
Regulators, as applicable, during any period in which the U.S. Prospectus or the
Canadian Prospectus relating to the Placement Shares is required to be delivered
under the Securities Act (including all documents filed with the Commission
during such period that are deemed to be incorporated by reference therein) or
delivered under Canadian Securities Laws, as applicable, in each case as soon as
reasonably practicable and in such quantities as the Agent may from time to time
reasonably request and, at the Agents request, will also furnish copies of the
U.S. Prospectus to each exchange or market on which sales of the Placement
Shares may be made; provided, however, that the Company shall not be required to
furnish any document (other than the U.S. Prospectus and the Canadian
Prospectus) to the Agent to the extent such document is available on EDGAR or
SEDAR, as the case may be.
-22-
(f)
Earnings Statement. The Company will make generally available to its
security holders as soon as practicable, but in any event not later than 15
months after the end of the Companys current fiscal quarter, an earnings
statement covering a 12-month period that satisfies the provisions of Section
11(a) and Rule 158 of the Securities Act.
(g)
Use of Proceeds. The Company will use the Net Proceeds as described in
the U.S. Prospectus in the section entitled Use of Proceeds.
(h) Notice of
Other Sales. During the pendency of any Placement Notice given hereunder,
and for five Business Days following the termination of any Placement Notice
given hereunder, the Company shall provide Cantor with notice as promptly as
reasonably possible before it offers to sell, contracts to sell, grants any
option to sell or otherwise disposes of any Common Shares (other than Placement
Shares offered pursuant to the provisions of this Agreement) or securities
convertible into or exchangeable for Common Shares, warrants or any rights to
purchase or acquire Common Shares; provided, however, that such notice will not
be required in connection with the Companys issuance or sale of (i) Common
Shares, options to purchase Common Shares or Common Shares issuable upon the
exercise of options, pursuant to any employee or director stock option or
benefits plan, stock ownership plan or dividend reinvestment plan (but not
Common Shares subject to a waiver to exceed plan limits in its dividend
reinvestment plan) of the Company whether now in effect or hereafter
implemented, (ii) Common Shares issuable upon conversion of securities or the
exercise of warrants, options or other rights in effect or outstanding, and
disclosed in filings by the Company available on EDGAR or SEDAR or otherwise in
writing to Cantor and (iii) Common Shares or securities convertible into or
exchangeable for Common Shares as consideration for mergers, acquisitions, other
business combinations or strategic alliances occurring after the date of this
Agreement which are not issued for capital raising purposes.
(i)
Change of Circumstances. The Company will, at any time during the
pendency of a Placement Notice advise the Agent promptly after it shall have
received notice or obtained knowledge thereof, of any information or fact that
would alter or affect in any material respect any opinion, certificate, letter
or other document required to be provided to the Agent pursuant to this
Agreement.
(j)
Due Diligence Cooperation. The Company will cooperate with any reasonable
due diligence review conducted by the Agent or its representatives in connection
with the transactions contemplated hereby, including, without limitation,
providing information and making available documents and senior corporate
officers, during regular business hours and at the Companys principal offices,
as the Agent may reasonably request.
(k)
Required Filings Relating to Placement of Placement Shares. The Company
agrees that on such dates as the Canadian Securities Laws and Form F-10 shall
require, the Company will (i) file a prospectus supplement with the Canadian
Securities Regulators and the Commission, which prospectus supplement will set
forth, within the relevant period, the amount of Placement Shares sold through
the Agent, the Net Proceeds to the Company and the compensation payable by the
Company to the Agent with respect to such Placement Shares, and (ii) deliver
such number of copies of each such prospectus supplement to each exchange or
market on which such sales were effected as may be required by the rules or
regulations of such exchange or market.
(l)
Representation Dates; Certificate. (1) Prior to the date of the first
Placement Notice and (2) each time the Company:
(i) files the U.S. Prospectus or
Canadian Prospectus relating to the Placement Shares or amends or supplements
(other than a prospectus supplement relating solely to an offering of securities other than the Placement Shares) the
Registration Statement or the U.S. Prospectus or Canadian Prospectus relating to
the Placement Shares by means of a post-effective amendment, sticker, or
supplement but not by means of incorporation of documents by reference into the
Registration Statement or the U.S. Prospectus or Canadian Prospectus relating to
the Placement Shares;
-23-
(ii) files an annual report on Form
20-F, Form 40-F or Form 10-K under the Exchange Act (including any Form 20-F/A,
Form 40-F/A or Form 10-K/A containing amended financial statements or a material
amendment to the previously filed Form 20-F) or annual information form under
Canadian Securities Law;
(iii) files or furnishes its quarterly
financial statements on Form 6-K or Form 10-Q under the Exchange Act or as
required pursuant to Canadian Securities Laws; or
(iv) files or furnishes a Form 6-K or
Form 10-Q/A containing amended financial statements under the Exchange Act or
files or furnishes amended financial statements as required by Canadian
Securities Laws (each date of filing of one or more of the documents referred to
in clauses (i) through (iv) shall be a Representation Date);
the Company shall furnish within five (5) Trading Days of each
Representation Date to the Agent (but in the case of clause (iii) or (iv) above
only if the Agent reasonably determines that the information contained in such
filing is material) a certificate, in the form attached hereto as Exhibit 7(l).
The requirement to provide a certificate under this Section 7(l) shall be waived
for any Representation Date occurring at a time a Suspension is in effect, which
waiver shall continue until the earlier to occur of the date the Company
delivers instructions for the sale of Placement Shares hereunder (which for such
calendar quarter shall be considered a Representation Date) and the next
occurring Representation Date. Notwithstanding the foregoing, if the Company
subsequently decides to sell Placement Shares following a Representation Date
when a Suspension was in effect and did not provide the Agent with a certificate
under this Section 7(l), then before the Company delivers the instructions for
the sale of Placement Shares or the Agent sells any Placement Shares pursuant to
such instructions, the Company shall provide the Agent with a certificate in
conformity with this Section 7(l) dated as of the date that the instructions for
the sale of Placement Shares are issued.
(m)
Legal Opinion. (1) Prior to the date of the first Placement Notice and
(2) within five (5) Trading Days of each Representation Date with respect to
which the Company is obligated to deliver a certificate in the form attached
hereto as Exhibit 7(l) for which no waiver is applicable and excluding the date
of this Agreement, the Company shall cause to be furnished to Agent a written
opinion of each of Dorsey & Whitney LLP (U.S. Company
Counsel) and Borden Ladner Gervais LLP (Canadian Company
Counsel), or other counsel(s) satisfactory to the Agent, in form and
substance satisfactory to Agent and its counsel, substantially similar to the
form attached hereto as Exhibits 7(m)(1) and 7(m)(2) respectively, modified, as
necessary, to relate to the Registration Statement, the Canadian Prospectus and
the U.S. Prospectus, as applicable, as then amended or supplemented; provided,
however, that the Company shall be required to furnish to Agent no more than one
opinion hereunder per calendar quarter; provided, further, that in lieu of such
opinions for subsequent periodic filings under the Exchange Act, counsel may
furnish the Agent with a letter (a Reliance Letter) to the
effect that the Agent may rely on a prior opinion delivered under this Section
7(m) to the same extent as if it were dated the date of such letter (except that
statements in such prior opinion shall be deemed to relate to the Registration
Statement, the Canadian Prospectus and the U.S. Prospectus, as applicable, as
amended or supplemented as of the date of the Reliance Letter).
(n)
Comfort Letter. (1) Prior to the date of the first Placement Notice and
(2) within five (5) Trading Days of each Representation Date with respect to
which the Company is obligated to deliver a certificate in the form attached
hereto as Exhibit 7(l) for which no waiver is applicable and excluding the date of this Agreement, the Company shall cause
its independent registered public accounting firm to furnish the Agent letters
(the Comfort Letters), dated the date the Comfort Letter is
delivered having a cut-off date of not more than two (2) Trading Days prior to
such date, which shall meet the requirements set forth in this Section 7(n);
provided, that if requested by the Agent, the Company shall cause a Comfort
Letter to be furnished to the Agent within ten (10) Trading Days of the date of
occurrence of any material transaction or event, including the restatement of
the Companys financial statements. The Comfort Letter from the Companys
independent registered public accounting firm shall be in a form and substance
satisfactory to the Agent, (i) confirming that they are an independent
registered public accounting firm within the meaning of the Securities Act and
the Public Company Accounting Oversight Board (United States) and are an
independent auditor as required by Canadian Securities Laws, (ii) stating, as of
such date, the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants
comfort letters to underwriters in connection with registered public offerings
(the first such letter, the Initial Comfort Letter) and (iii) updating the Initial Comfort Letter with
any information that would have been included in the Initial Comfort Letter had
it been given on such date and modified as necessary to relate to the
Registration Statement and the U.S. Prospectus, as amended and supplemented to
the date of such letter.
-24-
(o)
Market Activities. The Company will not, directly or indirectly, (i) take
any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization, maintenance or
manipulation of the price of any security of the Company to facilitate the sale
or resale of Common Shares or (ii) sell, bid for, or purchase Common Shares, or
pay anyone any compensation for soliciting purchases of the Placement Shares
other than the Agent.
(p)
Investment Company Act. The Company will conduct its affairs in such a
manner so as to reasonably ensure that neither it nor any of the Material
Subsidiaries will be or become, at any time prior to the termination of this
Agreement, required to register as an investment company, as such term is
defined in the Investment Company Act.
(q)
No Offer to Sell. Other than an Issuer Free Writing Prospectus approved
in advance by the Company and the Agent in its capacity as agent hereunder,
neither the Agent nor the Company (including its agents and representatives,
other than the Agent in its capacity as such) will make, use, prepare,
authorize, approve or refer to any written communication (as defined in Rule 405
under the Securities Act), required to be filed with the Commission, that
constitutes an offer to sell or solicitation of an offer to buy Placement Shares
hereunder.
(r)
Blue Sky and Other Qualifications. At any time that the Company
does not have a class of securities listed on a United States National
Securities Exchange, the Company will use its commercially reasonable efforts,
in cooperation with the Agent, to qualify the Placement Shares for offering and
sale, or to obtain an exemption for the Placement Shares to be offered and sold,
under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Agent may designate and to maintain such
qualifications and exemptions in effect for so long as required for the
distribution of the Placement Shares (but in no event for less than one year
from the date of this Agreement); provided, however, that the Company shall not
be obligated to file a prospectus, registration statement or similar disclosure
document with any regulatory authority or any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Placement Shares have
been so qualified or exempt, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification or exemption, as the case may be, in effect for so long as
required for the distribution of the Placement Shares (but in no event for less
than one year from the date of this Agreement).
-25-
(s)
Disclosure Controls and Procedures and Internal Control Over Financial
Reporting. The Company and the Material Subsidiaries will maintain and
keep accurate books and records reflecting their assets and maintain internal
accounting controls and procedures in a manner designed to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally
accepted accounting principles and including those policies and procedures that
(i) pertain to the maintenance of records that in reasonable detail accurately
and fairly reflect the transactions and dispositions of the assets of the
Company, (ii) provide reasonable assurance that transactions are recorded as
necessary to permit the preparation of the Companys consolidated financial
statements in accordance with IFRS or GAAP as may then be applicable, (iii) that
receipts and expenditures of the Company are being made only in accordance with
managements and the Companys directors authorization, and (iv) provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Companys assets that could have a
material effect on its financial statements. Except as otherwise described in
the Companys Managements Discussion and Analysis for the period ended June 30,
2015 in order to exclude controls, policies and procedures of a business that
the Company acquired not more than 365 days before the last day of the period
covered by a filing, the Company and the Material Subsidiaries will maintain
such controls and other procedures, including, without limitation, those
required by Sections 302 and 906 of the Sarbanes-Oxley Act and NI 52-109, and
the applicable regulations thereunder that are designed to ensure that
information required to be disclosed by the Company in the reports that it files
or submits under the Exchange Act or Canadian Securities Laws is recorded,
processed, summarized and reported, within the time periods specified in the
Commissions or Canadian Securities Regulators rules and forms, including,
without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act or Canadian Securities Laws is accumulated and
communicated to the Companys management, including its principal executive
officer and principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required
disclosure and to ensure that material information relating to the Company or
the Material Subsidiaries is made known to them by others within those entities,
particularly during the period in which such periodic reports are being
prepared.
(t)
Secretarys Certificate; Further Documentation. Prior to the date of the
first Placement Notice, the Company shall deliver to the Agent a certificate of
the Secretary of the Company and attested to by an executive officer of the
Company, dated as of such date, certifying as to (i) the Articles of Continuance
of the Company, (ii) the Bylaws of the Company, (iii) the resolutions of the
Board of Directors of the Company authorizing the execution, delivery and
performance of this Agreement and the issuance of the Placement Shares and (iv)
the incumbency of the officers duly authorized to execute this Agreement and the
other documents contemplated by this Agreement. Within five (5) Trading Days of
each Representation Date, the Company shall have furnished to the Agent such
further information, certificates and documents as the Agent may reasonably
request.
(u)
Canadian Securities Laws, Securities Act, and Exchange Act. The Company
will use its commercially reasonable efforts to comply in all material respects
with all requirements imposed upon it by Canadian Securities Laws, the
Securities Act, the Exchange Act and the rules of the Exchanges as from time to
time in force, so far as necessary to permit the continuance of sales of, or
dealings in, the Placement Shares as contemplated by the provisions hereof and
the U.S. Prospectus.
(v)
Reports, etc. The Company will use its commercially reasonable efforts to
(i) file promptly all reports required to be filed by the Company with the
Commission or the Canadian Securities Regulators; (ii) file promptly all reports
and other documents required to be filed by the Company to comply with Canadian
Securities Laws, (iii) provide the Agent with a copy of such reports and
statements and other documents filed by the Company pursuant to the Canadian
Securities Laws and to promptly notify the Agent of such filing unless available on
SEDAR; (iv) advise the Agent, promptly after it receives notices thereof, (x) of
any request by the Canadian Securities Regulators or the Commission to amend or
supplement the Registration Statement, the Canadian Base Prospectus, the U.S.
Base Prospectus, the U.S. Prospectus Supplement, the Canadian Prospectus
Supplement or the Issuer Free Writing Prospectus, if any, or for additional
information with respect thereto or (y) of the issuance by the Commission or a
Canadian Securities Regulator of any stop order suspending the effectiveness of
the Registration Statement or either of the Prospectuses, respectively, or the
institution or threatening of any proceeding for any such purpose.
-26-
(w)
Shelf Procedures. The Company shall comply with the requirements of the
Shelf Procedures and General Instruction II.L of Form F-10 and file the Canadian
Prospectus Supplement with the Canadian Securities Regulators and the U.S.
Prospectus Supplement with the Commission on the day which is no later than two
Business Days following the date of this Agreement. If during the period in
which a prospectus is required by law to be delivered by the Agent, any event
shall occur that makes any statement made in the Registration Statement, the
U.S. Prospectus, the Canadian Prospectus or the Issuer Free Writing Prospectus,
if any, untrue or that as a result of which, in the judgment of the Company or
in the reasonable opinion of the Agent or counsel for the Agent, it becomes
necessary to amend or supplement the Registration Statement in order to make the
statements therein not misleading, or the U.S. Prospectus or the Canadian
Prospectus in order to (i) constitute full, true and plain disclosure of all
material facts relating to the Company and the Material Subsidiaries (taken as a
whole) and the Placement Shares; and (ii) make the statements therein, in the
light of the circumstances in which they are made, not misleading, or, if it is
necessary at any time to amend or supplement the Registration Statement, the
U.S. Prospectus, the Canadian Prospectus or the Issuer Free Writing Prospectus,
if any, to comply with any law, the Company promptly will prepare and file with
the Commission and the Canadian Securities Regulators, and furnish at its own
expense to the Agent, an appropriate amendment to the Registration Statement or
supplement to the U.S. Prospectus, Canadian Prospectus or the Issuer Free
Writing Prospectus, if any, so that the Registration Statement as so amended or
the U.S. Prospectus or the Canadian Prospectus, as so amended or supplemented
will (i) constitute full, true and plain disclosure of all material facts
relating to the Company and the Material Subsidiaries (taken as a whole) and the
Placement Shares; and (ii) not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Registration Statement, U.S. Prospectus
or the Canadian Prospectus shall comply with such law. Before amending the
Registration Statement or amending or supplementing the U.S. Prospectus or the
Canadian Prospectus in connection with this Agreement, the Company shall furnish
the Agent with a copy of such proposed amendment or supplement and shall not
file such amendment or supplement to which the Agent reasonably objects.
(x)
Marketing Materials. During the term of this Agreement, the Company shall
not provide any marketing materials (as such term is defined in National
Instrument 41-101 General Prospectus Requirements) in Canada.
8.
Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement, including any fees
required by the Commission or the Canadian Securities Regulators, and the
printing or electronic delivery of the Registration Statement, the Form F-X, any
Preliminary Prospectus and the Prospectuses as originally filed and of each
amendment and supplement thereto, in such number as the Agent shall deem
necessary, (ii) the printing and delivery to the Agent of this Agreement and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Placement Shares, (iii) the
preparation, issuance and delivery of the certificates, if any, for the
Placement Shares to the Agent, including any stock or other transfer taxes and
any capital duties, stamp duties or other duties or taxes payable upon the sale,
issuance or delivery of the Placement Shares to the Agent, (iv) the fees and
disbursements of the counsel, accountants and other advisors to the Company, (v) the reasonable fees and disbursements of the counsel to the
Agent, payable upon the execution of this Agreement, in an amount not to exceed
US$75,000; (vi) the qualification or exemption of the Placement Shares under
state and provincial securities laws in accordance with the provisions of
Section 7(r) hereof, including filing fees, but excluding fees of the Agents
counsel, (vii) the printing and delivery to the Agent of copies of any Permitted
Issuer Free Writing Prospectus and the U.S. Prospectus and any amendments or
supplements thereto in such number as the Agent shall deem necessary, (viii) the
preparation, printing and delivery to the Agent of copies of the blue sky
survey, (ix) the fees and expenses of the transfer agent and registrar for the
Common Shares, (x) the filing and other fees incident to any review by FINRA of
the terms of the sale of the Placement Shares including the fees of the Agents
counsel (subject to the cap set forth in clause (v) above), and (xi) the fees
and expenses incurred in connection with the listing of the Placement Shares on
each Exchange.
-27-
9.
Conditions to Agents Obligations. The obligations of the Agent hereunder
with respect to a Placement will be subject to the continuing accuracy and
completeness of the representations and warranties made by the Company herein,
to the due performance by the Company of its obligations hereunder, to the
completion by the Agent of a due diligence review satisfactory to it in its
reasonable judgment, and to the continuing satisfaction (or waiver by the Agent
in its sole discretion) of the following additional conditions:
(a) Registration Statement
Effective. The Registration Statement shall have become effective and shall
be available for the (i) resale of all Placement Shares issued to the Agent and
not yet sold by the Agent and (ii) sale of all Placement Shares contemplated to
be issued by any Placement Notice.
(b)
No Material Notices. None of the following events shall have occurred and
be continuing: (i) receipt by the Company of any request for additional
information from the Commission, the Canadian Securities Regulators or any other
federal, state or provincial Governmental Authority during the period of
effectiveness of the Registration Statement, the response to which would require
any post-effective amendments or supplements to the Registration Statement or
the Prospectuses; (ii) the issuance by the Commission, the Canadian Securities
Regulators or any other federal, state or provincial Governmental Authority of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; (iii) receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Placement Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; or (iv) the occurrence of any event that makes any material statement
made in the Registration Statement or either of the Prospectuses or any material
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in the
Registration Statement, the Prospectuses or documents so that, in the case of
the Registration Statement, it will not contain any materially untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, that in
the case of each Prospectus, it will not contain any materially untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c)
No Misstatement or Material Omission. The Agent shall not have been
advised by the Company or the Agents counsel that the Registration Statement or
the Prospectuses, or any amendment or supplement thereto, contains an untrue
statement of fact that in the Agents reasonable opinion is material, or omits
to state a fact that in the Agents reasonable opinion is material and is
required to be stated therein or is necessary to make the statements therein not
misleading.
(d)
Material Changes. Except as contemplated in the Prospectuses, or
disclosed in the Companys reports filed with the Commission and the Canadian
Securities Regulators, there shall not have been any Material Adverse Effect or any development that
could reasonably be expected to cause a Material Adverse Effect, or a
downgrading in or withdrawal of any rating assigned to any of the Companys
securities (other than asset backed securities) by any rating organization or a
public announcement by any rating organization that it has under surveillance or
review its rating of any of the Companys securities (other than asset backed
securities), the effect of which, in the case of any such action by a rating
organization described above, in the reasonable judgment of the Agent (without
relieving the Company of any obligation or liability it may otherwise have), is
so material as to make it impracticable or inadvisable to proceed with the
offering of the Placement Shares on the terms and in the manner contemplated in
the U.S. Prospectus.
-28-
(e)
Legal Opinions. The Agent shall have received the opinions of each of
U.S. Company Counsel and Canadian Company Counsel required to be delivered
pursuant to Section 7(m) on or before the date on which such delivery of such
opinion is required pursuant to Section 7(m).
(f)
Comfort Letters. The Agent shall have received the Comfort Letters
required to be delivered pursuant to Section 7(n) on or before the date on which
such delivery of such Comfort Letters are required pursuant to Section 7(n).
(g)
Representation Certificate. The Agent shall have received the certificate
required to be delivered pursuant to Section 7(l) on or before the date on which
delivery of such certificate is required pursuant to Section 7(l).
(h)
No Suspension. Trading in the Common Shares shall not have been suspended
on either Exchange and the Common Shares shall not have been delisted from
either Exchange.
(i)
Other Materials. On each date on which the Company is required to deliver
a certificate pursuant to Section 7(l), the Company shall have furnished to the
Agent such appropriate further information, opinions, certificates, letters and
other as the Agent may reasonably request. All such opinions, certificates,
letters and other documents will be in compliance with the provisions hereof.
(j)
Securities Act Filings Made. All filings with the Canadian Securities
Regulators and the Commission required by Canadian Securities Laws and Form F-10
to have been filed prior to the issuance of any Placement Notice hereunder shall
have been made within the applicable time period prescribed for such filing.
(k)
Approval for Listing. The Placement Shares shall either have been
approved for listing quotation on each Exchange, subject only to notice of
issuance, or the Company shall have filed an application for listing quotation
of the Placement Shares on each Exchange at, or prior to, the issuance of any
Placement Notice.
(l)
FINRA. FINRA shall not have raised any objection to the terms of this
offering and the amount of compensation allowable or payable to the Agent as
described in the U.S. Prospectus.
(m)
No Termination Event. There shall not have occurred any event that would
permit the Agent to terminate this Agreement pursuant to Section 12(a).
(n)
No Governmental Objections. No U.S., Canadian, or other Governmental
Authority shall have issued any opinion, guidance, objection, or advice that can
be construed as limiting or restricting in any way the ability of the Agent to
carry out the transactions contemplated hereunder.
-29-
10.
Indemnification and Contribution.
(a)
Company Indemnification. The Company agrees to indemnify and hold
harmless the Agent, its affiliates and their respective partners, members,
directors, officers, employees, counsel and agents and each person, if any, who
controls the Agent or any affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and
all loss, liability, claim, damage and expense whatsoever, as incurred, joint or
several, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact included in any related Issuer Free Writing
Prospectus, the Prospectuses (or any amendment or supplement thereto) or any
marketing materials, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and
all loss, liability, claim, damage and expense whatsoever, as incurred, joint or
several, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 10(d) below) any such settlement is effected
with the written consent of the Company, which consent shall not unreasonably be
delayed or withheld; and
(iii) against any and all expense whatsoever, upon
receipt of reasonable documentation of such expenses (including the fees and
disbursements of counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission (whether or not a party), to the extent that any such
expense is not paid under (i) or (ii) above,
provided, however,
that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made solely in reliance upon and in
conformity with written information relating to the Agent furnished to the
Company by the Agent expressly for use in the Registration Statement (or any
amendment thereto), or in any related Issuer Free Writing Prospectus or the
Prospectuses (or any amendment or supplement thereto).
(b)
Agent Indemnification. Agent agrees to indemnify and hold harmless the
Company and its directors and each officer and director of the Company who
signed the Registration Statement or the Prospectuses, and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 10(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or the Prospectuses (or any amendment or supplement thereto)
in reliance upon and in conformity with information relating to the Agent and
furnished to the Company in writing by the Agent expressly for use therein. The
Company hereby acknowledges that the only information that the Agent has
furnished to the Company expressly for use in the Registration Statement, the
U.S. Prospectus or any Issuer Free Writing Prospectus (or any amendment or
supplement thereto) are the statements set forth in the seventh and eighth
paragraphs under the caption Plan of Distribution in the U.S. Prospectus and
in the seventh and eighth paragraphs under the caption Plan of Distribution in
the Canadian Prospectus Supplement.
-30-
(c)
Procedure. Any party that proposes to assert the right to be indemnified
under this Section 10 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 10, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve the indemnifying party from (i) any liability that it might have to any
indemnified party otherwise than under this Section 10 and (ii) any liability
that it may have to any indemnified party under the foregoing provision of this
Section 10 unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written notice
to the indemnified party promptly after receiving notice of the commencement of
the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any other
legal expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action or counsel reasonably satisfactory to the indemnified
party, in each case, within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction (plus local counsel) at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. An indemnifying party will
not, in any event, be liable for any settlement of any action or claim effected
without its written consent. No indemnifying party shall, without the prior
written consent of each indemnified party, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 10 (whether or
not any indemnified party is a party thereto), unless such settlement,
compromise or consent (1) includes an express, full and unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (2) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d)
Settlement Without Consent if Failure to Reimburse. If an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 10(a)(ii) effected without its written consent if (1)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (2) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (3) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
-31-
(e)
Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 10 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Agent, the Company
and the Agent will contribute to the total losses, claims, liabilities, expenses
and damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution
received by the Company from persons other than the Agent, such as persons who
control the Company within the meaning of the Securities Act, officers of the
Company who signed the Registration Statement or the Prospectuses and directors
of the Company, who also may be liable for contribution) to which the Company
and the Agent may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Agent on the other hand. The relative benefits received by the Company on the
one hand and the Agent on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the sale of the Placement Shares
(before deducting expenses) received by the Company bear to the total
compensation received by the Agent (before deducting expenses) from the sale of
Placement Shares on behalf of the Company. If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is appropriate to
reflect not only the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company, on the one hand, and the Agent, on the
other hand, with respect to the statements or omission that resulted in such
loss, claim, liability, expense or damage, or action in respect thereof, as well
as any other relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Agent, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Agent agree that it would not be just and
equitable if contributions pursuant to this Section 10(e) were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, liability,
expense, or damage, or action in respect thereof, referred to above in this
Section 10(e) shall be deemed to include, for the purpose of this Section 10(e),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim to the
extent consistent with Section 10(c) hereof. Notwithstanding the foregoing
provisions of this Section 10(e), the Agent shall not be required to contribute
any amount in excess of the commissions received by it under this Agreement and
no person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 10(e), any person who controls a party to this Agreement within the
meaning of the Securities Act, and any officers, directors, partners, employees,
counsel or agents of the Agent, will have the same rights to contribution as
that party, and each officer and director of the Company who signed the
Registration Statement or Prospectuses will have the same rights to contribution
as the Company, subject in each case to the provisions hereof. Any party
entitled to contribution, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim for contribution may
be made under this Section 10(e), will notify any such party or parties from
whom contribution may be sought, but the omission to so notify will not relieve
that party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 10(e) except to the extent
that the failure to so notify such other party materially prejudiced the
substantive rights or defenses of the party from whom contribution is sought.
Except for a settlement entered into pursuant to the last sentence of Section
10(c) hereof, no party will be liable for contribution with respect to any
action or claim settled without its written consent if such c onsent is required
pursuant to Section 10(c) hereof.
-32-
11.
Representations and Agreements to Survive Delivery. The indemnity and
contribution agreements contained in Section 10 of this Agreement and all
representations and warranties of the Company herein or in certificates
delivered pursuant hereto shall survive, as of their respective dates,
regardless of (i) any investigation made by or on behalf of the Agent, any
controlling persons, or the Company (or any of their respective officers,
directors or controlling persons), (ii) delivery and acceptance of the Placement
Shares and payment therefor or (iii) any termination of this Agreement.
12.
Termination.
(a)
The Agent may terminate this Agreement, by notice to the Company, as hereinafter
specified at any time (1) if there has been, since the time of execution of this
Agreement or since the date as of which information is given in the
Prospectuses, any change, or any development or event involving a prospective
change, in the condition, financial or otherwise, or in the business,
properties, earnings, results of operations or prospects of the Company and the
Material Subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, which individually or in the aggregate, in the
sole judgment of the Agent has or could reasonably be expected to have a
Material Adverse Effect and makes it impractical or inadvisable to market the
Placement Shares or to enforce contracts for the sale of the Placement Shares,
(2) if there has occurred any material adverse change in the financial markets
in the United States, Canada or the international financial markets, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Agent,
impracticable or inadvisable to market the Placement Shares or to enforce
contracts for the sale of the Placement Shares, (3) if trading in the Common
Shares has been suspended or limited by the Commission, any Canadian Securities
Regulator, IIROC or either Exchange, or if trading generally on either Exchange
has been suspended, halted or limited, or minimum prices for trading have been
fixed on either Exchange, (4) if any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market shall have
occurred and be continuing, (5) if a major disruption of securities settlements
or clearance services in the United States or Canada shall have occurred and be
continuing, or (6) if a banking moratorium has been declared by either Canadian
or U.S. Federal or New York authorities. Any such termination shall be without
liability of any party to any other party except that the provisions of Section
8 (Payment of Expenses), Section 10 (Indemnification and Contribution), Section
11 (Representations and Agreements to Survive Delivery), Section 13 (Notices),
Section 14 (Successors and Assigns), Section 16 (Entire Agreement; Amendment;
Severability) Section 17 (Governing Law and Time; Waiver of Jury Trial), Section
18 (Consent to Jurisdiction), Section 19 (Appointment of Agent for Service),
Section 20 (Judgment Currency), Section 24 (Absence of Fiduciary Relationship)
and Section 25 (Definitions) hereof shall remain in full force and effect
notwithstanding such termination. If the Agent elects to terminate this
Agreement as provided in this Section 12(a), the Agent shall provide the
required notice as specified in Section 13 (Notices).
(b)
The Company shall have the right, by giving ten (10) days notice as hereinafter
specified to terminate this Agreement in its sole discretion at any time after
the date of this Agreement. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 8, Section
10, Section 11, Section 13, Section 14, Section 16, Section 17, Section 18,
Section 19, Section 20, Section 24 and Section 25 hereof shall remain in full
force and effect notwithstanding such termination.
(c)
The Agent shall have the right, by giving ten (10) days notice as hereinafter
specified to terminate this Agreement in its sole discretion at any time after a
minimum net proceeds of $500,000 from the sale of Placement Shares has been
realized by the Company under this Agreement. Any such termination shall be
without liability of any party to any other party except that the provisions of
Section 8, Section 10, Section 11, Section 13, Section 14, Section 16, Section
17, Section 18, Section 19, Section 20, Section 24 and Section 25 hereof shall remain
in full force and effect notwithstanding such termination.
-33-
(d)
Unless earlier terminated pursuant to this Section 12, this Agreement shall
automatically terminate upon the issuance and sale of the Maximum Amount of
Placement Shares through the Agent on the terms and subject to the conditions
set forth herein; provided that the provisions of Section 8, Section 10, Section
11, Section 17, Section 18, Section 19 and Section 20 hereof shall remain in
full force and effect notwithstanding such termination.
(e)
This Agreement shall remain in full force and effect unless terminated pursuant
to Sections 12(a), (b), (c), or (d) above or otherwise by mutual agreement of
the parties; provided, however, that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 8, Section 10, Section 11,
Section 13, Section 14, Section 16, Section 17, Section 18, Section 19, Section
20, Section 24 and Section 25 shall remain in full force and effect.
(f)
Any termination of this Agreement shall be effective on the date specified in
such notice of termination; provided, however, that such termination shall not
be effective until the close of business on the date of receipt of such notice
by the Agent or the Company, as the case may be. If such termination shall occur
prior to the Settlement Date for any sale of Placement Shares, such Placement
Shares shall settle in accordance with the provisions of this Agreement.
13.
Notices. All notices or other communications required or permitted to be
given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agent, shall
be delivered to:
Cantor Fitzgerald & Co.
499
Park Avenue
New York, NY 10022
Attention: Capital Markets/Jeffrey Lumby
Facsimile: (212) 307-3730
with copies to:
Cantor Fitzgerald & Co.
499
Park Avenue
New York, NY 10022
Attention: General Counsel
Facsimile:
(212) 829-4708
and with a copy to:
Cooley LLP
1114 Avenue of the
Americas
New York, NY 10036
Attention: Daniel I. Goldberg, Esq.
Facsimile: (212) 479-6275
and with a copy to:
Stikeman Elliott LLP
5300 Commerce
Court West
199 Bay Street
-34-
Toronto, ON M5L 1B9
Canada
Attention: Simon Romano or Paul Rakowski
Facsimile: (416) 947-0866
and if to the Company, shall be delivered to:
Energy Fuels Inc.
225 Union Blvd.,
Suite 600
Lakewood, CO 80228
Attention: David Frydenlund, Senior Vice
President, General Counsel and
Corporate Secretary
Facsimile: (303)
389-4129
and with a copy to:
Borden Ladner Gervais LLP
Scotia
Plaza Tower
40 King Street West
Toronto, ON M5H 3Y4
Canada
Attention: Mark Wheeler or Jason Saltzman
Facsimile: (416) 361-7376
and with a copy to:
Dorsey & Whitney LLP
Brookfield Place
161 Bay Street, Suite 4310
Toronto, ON M5J 2S1
Canada
Attention: Richard Raymer or James Guttman
Facsimile: (416)
367-7371
Each party to this Agreement may change such address for notices by sending to
the parties to this Agreement written notice of a new address for such purpose.
Each such notice or other communication shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission (with an original to follow)
on or before 4:30 p.m., New York City time, on a Business Day or, if such day is
not a Business Day, on the next succeeding Business Day, (ii) on the next
Business Day after timely delivery to a nationally-recognized overnight courier
and (iii) on the Business Day actually received if deposited in the U.S. mail
(certified or registered mail, return receipt requested, postage prepaid). For
purposes of this Agreement, Business Day shall mean any day on
which each Exchange and commercial banks in the City of New York and the City of
Toronto are open for business.
An
electronic communication (Electronic Notice) shall be deemed
written notice for purposes of this Section 13 if sent to the electronic mail
address specified by the receiving party under separate cover. Electronic Notice
shall be deemed received at the time the party sending Electronic Notice
receives verification of receipt by the receiving party. Any party receiving
Electronic Notice may request and shall be entitled to receive the notice on
paper, in a nonelectronic form (Nonelectronic Notice)
which shall be sent to the requesting party within ten (10) days of receipt of
the written request for Nonelectronic Notice.
-35-
14.
Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the Company and the Agent and their respective successors and
the affiliates, controlling persons, officers and directors referred to in
Section 10 hereof. References to any of the parties contained in this Agreement
shall be deemed to include the successors and permitted assigns of such party.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement. Neither party
may assign its rights or obligations under this Agreement without the prior
written consent of the other party; provided, however, that the Agent may assign
its rights and obligations hereunder to an affiliate thereof without obtaining
the Companys consent.
15.
Adjustments for Stock Splits. The parties acknowledge and agree that all
share-related numbers contained in this Agreement shall be adjusted to take into
account any stock split, stock consolidation, stock dividend or similar event
effected with respect to the Placement Shares.
16. Entire Agreement; Amendment;
Severability. This Agreement (including all schedules and exhibits attached
hereto and Placement Notices issued pursuant hereto) constitutes the entire
agreement and supersedes all other prior and contemporaneous agreements and
undertakings, both written and oral, among the parties hereto with regard to the
subject matter hereof. Neither this Agreement nor any term hereof may be amended
except pursuant to a written instrument executed by the Company and the Agent.
In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable as written by a court of competent jurisdiction, then such
provision shall be given full force and effect to the fullest possible extent
that it is valid, legal and enforceable, and the remainder of the terms and
provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only to the extent
that giving effect to such provision and the remainder of the terms and
provisions hereof shall be in accordance with the intent of the parties as
reflected in this Agreement.
17.
GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
18.
CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE
CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY
IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM
OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY
HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
(CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE
ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY
RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. TO THE EXTENT THAT THE
COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY (ON THE GROUNDS OF SOVEREIGNTY
OR OTHERWISE) FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS WITH
RESPECT TO ITSELF OR ITS PROPERTY, THE COMPANY IRREVOCABLY WAIVES, AS AGENTS FOR
SUITS, ACTIONS OR PROCEEDINGS HEREUNDER, TO THE FULLEST EXTENT PERMITTED BY LAW,
SUCH IMMUNITY IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING.
-36-
19.
Appointment of Agent for Service. The Company hereby irrevocably appoints
Energy Fuels Resources (USA) Inc., with offices at 225 Union Blvd., Suite 600,
Lakewood, Colorado, 80228, as its agent for service of process in any suit,
action or proceeding described in Section 18 and agrees that service of process
in any such suit, action or proceeding may be made upon it at the office of such
agent. The Company waives, to the fullest extent permitted by law, any other
requirements of or objections to personal jurisdiction with respect thereto. The
Company represents and warrants that such agent has agreed to act as the
Companys agent for service of process, and the Company agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect.
20.
Judgment Currency. If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder into any currency other than
United States dollars, the parties hereto agree, to the fullest extent permitted
by law, that the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Agent could purchase United States dollars
with such other currency in The City of New York on the Business Day preceding
that on which final judgment is given. The obligation of the Company with
respect to any sum due from it to the Agent or any person controlling the Agent
shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first Business Day following receipt by the
Agent or any person controlling the Agent of any sum in such other currency, and
only to the extent that the Agent or controlling person may in accordance with
normal banking procedures purchase United States dollars with such other
currency. If the United States dollars so purchased are less than the sum
originally due to the Agent or controlling person hereunder, the Company agrees
as a separate obligation and notwithstanding any such judgment, to indemnify the
Agent or controlling person against such loss. If the United States dollars so
purchased are greater than the sum originally due to the Agent or controlling
person hereunder, the Agent or controlling person agrees to pay to the Company
an amount equal to the excess of the dollars so purchased over the sum
originally due to the Agent or controlling person hereunder.
21.
Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one
party to the other may be made by facsimile transmission.
22.
Effect of Headings. The section and exhibit headings herein are for
convenience only and shall not affect the construction hereof.
-37-
23.
Permitted Free Writing Prospectuses. The Company represents, warrants and
agrees that, unless it obtains the prior consent of the Agent, and the Agent
represents, warrants and agrees that, unless it obtains the prior consent of the
Company, it has not made and will not make any offer relating to the Placement
Shares that would constitute an Issuer Free Writing Prospectus, or that would
otherwise constitute a free writing prospectus, as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus
consented to by the Agent or by the Company, as the case may be, is hereinafter
referred to as a Permitted Free Writing Prospectus. The Company represents and
warrants that it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an issuer free writing prospectus, as defined in Rule
433, and has complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including timely filing
with the Commission where required, legending and record keeping. For the
purposes of clarity, the parties hereto agree that all free writing
prospectuses, if any, listed in Exhibit 23 hereto are Permitted Free
Writing Prospectuses.
24.
Absence of Fiduciary Relationship. The Company acknowledges and agrees
that:
(a) The Agent is acting solely as
agent in connection with the public offering of the Placement Shares and in
connection with each transaction contemplated by this Agreement and the process
leading to such transactions, and no fiduciary or advisory relationship between
the Company or any of its respective affiliates, shareholders (or other equity
holders), creditors or employees or any other party, on the one hand, and the
Agent, on the other hand, has been or will be created in respect of any of the
transactions contemplated by this Agreement, irrespective of whether or not the
Agent has advised or is advising the Company on other matters, and the Agent has
no obligation to the Company with respect to the transactions contemplated by
this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and
understanding, and understands and accepts, the terms, risks and conditions of
the transactions contemplated by this Agreement;
(c) neither the Agent nor any of its
affiliates have provided any legal, accounting, regulatory or tax advice with
respect to the transactions contemplated by this Agreement and it has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has
deemed appropriate;
(d) it is aware that the Agent and its
affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and the Agent and its affiliates
have no obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e) it waives, to the fullest extent
permitted by law, any claims it may have against the Agent or its affiliates for
breach of fiduciary duty or alleged breach of fiduciary duty in connection with
the sale of Placement Shares under this Agreement and agrees that the Agent and
its affiliates shall not have any liability (whether direct or indirect, in
contract, tort or otherwise) to it in respect of such a fiduciary duty claim or
to any person asserting a fiduciary duty claim on its behalf or in right of it
or the Company, employees or creditors of Company, other than in respect of the
Agents obligations under this Agreement and to keep information provided by the
Company to the Agent and the Agent 's counsel confidential to the extent not
otherwise publicly-available.
25.
Definitions. As used in this Agreement, the following terms have the
respective meanings set forth below:
Applicable Time means (i)
each Representation Date and (ii) the time of each sale of any Placement Shares
pursuant to this Agreement.
-38-
Governmental
Authority means (i) any federal, provincial, state, local, municipal,
national or international government or governmental authority, regulatory or
administrative agency, governmental commission, department, board, bureau,
agency or instrumentality, court, tribunal, arbitrator or arbitral body (public
or private); (ii) any self-regulatory organization; or (iii) any political
subdivision of any of the foregoing.
Issuer
Free Writing Prospectus means any issuer free writing prospectus, as
defined in Rule 433, relating to the Placement Shares that (1) is required to be
filed with the Commission by the Company, (2) is a road show that is a
written communication within the meaning of Rule 433(d)(8)(i) whether or not
required to be filed with the Commission, or (3) is exempt from filing pursuant
to Rule 433(d)(5)(i) because it contains a description of the Placement Shares
or of the offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not required to be
filed, in the form retained in the Companys records pursuant to Rule 433(g)
under the Rules and Regulations.
Rule 164, Rule 172, Rule 405 and
Rule 433 refer to such rules under the Rules and Regulations.
All
references in this Agreement to financial statements and schedules and other
information that is contained, included or stated in the Registration
Statement or the Prospectuses (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information that is incorporated by reference in the Registration Statement or
the Prospectuses, as the case may be.
All
references in this Agreement to the Registration Statement, the U.S. Prospectus,
the Canadian Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission or the Canadian
Securities Regulators pursuant to EDGAR and SEDAR, as applicable; all references
in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be
filed with the Commission) shall be deemed to include the copy thereof filed
with the Commission pursuant to EDGAR; and all references in this Agreement to
supplements to the Prospectuses shall include, without limitation, any
supplements, wrappers or similar materials prepared in connection with any
offering, sale or private placement of any Placement Shares by the Agent outside
of the United States or Canada.
[Signature Page Follows]
-39-
If
the foregoing correctly sets forth the understanding between the Company and the
Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Agent.
Very truly yours,
ENERGY FUELS INC.
|
By: |
/s/ Stephen P. Antony |
|
|
Name: Stephen P. Antony |
|
|
Title: President and Chief Executive Officer |
ACCEPTED as of the date first-above
written:
CANTOR FITZGERALD & CO.
|
By: |
/s/ Jeffrey Lumby |
|
|
Name: Jeffrey Lumby |
|
|
Title: Senior Managing Director
|
SIGNATURE PAGE
ENERGY FUELS INC. SALES AGREEMENT
SCHEDULE 1
__________________________
Form of Placement Notice
__________________________
|
From: |
Energy Fuels Inc. |
|
|
|
|
To: |
Cantor Fitzgerald & Co. |
|
|
Attention: ______________________________ |
|
|
|
|
Subject: |
Placement Notice |
|
|
|
|
Date: |
[] |
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Sales Agreement
between Energy Fuels Inc., a company continued under the Business
Corporations Act (Ontario) (the Company), and Cantor
Fitzgerald & Co. (Agent), dated September 29, 2015, the
Company hereby requests that the Agent sell up to [] of the Companys Common
Shares (no par value) at a minimum market price of US$[] per share, during the
time period beginning [month, day, time] and ending [month, day, time].
SCHEDULE 2
__________________________
Compensation
__________________________
The
Company shall pay to the Agent in cash, upon each sale of Placement Shares
pursuant to this Agreement, an amount equal to up to 3.0% of the aggregate gross
proceeds from each sale of Placement Shares.
SCHEDULE 3
__________________________
Notice Parties
__________________________
The Company
Stephen P. Antony (santony@energyfuels.com)
Daniel G. Zang (dzang@energyfuels.com)
David C. Frydenlund (dfrydenlund@energyfuels.com)
Cantor
Jeff Lumby (jlumby@cantor.com)
Josh Feldman (jfeldman@cantor.com)
Sameer Vasudev (svasudev@cantor.com)
With copies to:
CFControlledEquityOffering@cantor.com
CST Trust Company (the Companys Transfer Agent)
Christopher De Lima (cdelima@canstockta.com)
Carol Pineda (cpineda@canstockta.com)
SCHEDULE 4
__________________________
Material Subsidiaries
__________________________
Magnum Uranium Corp. |
British Columbia |
100% |
Titan Uranium Inc. |
Canada |
100% |
Strathmore Minerals Corp. |
British Columbia |
100% |
Uranium Power Corp. |
British Columbia |
100% |
Strathmore Resources (US) Ltd. |
Nevada |
100% |
Energy Fuels Holdings Corp. |
Delaware |
100% |
Roca Honda Resources LLC |
Delaware |
60% |
Magnum Minerals USA Corp. |
Nevada |
100% |
Energy Fuels Wyoming Inc. |
Nevada |
100% |
Energy Fuels Resources (USA) Inc. |
Delaware |
100% |
EFR White Mesa LLC |
Colorado |
100% |
EFR Henry Mountains LLC |
Colorado |
100% |
EFR White Canyon Corp. |
Delaware |
100% |
EFR Colorado Plateau LLC |
Colorado |
100% |
EFR Arizona Strip LLC |
Colorado |
100% |
Uranerz Energy Corporation |
Nevada |
100% |
Wyoming Gold Mining Company, Inc. |
Wyoming |
100% |
CK Mining Corp. |
Nevada |
50% |
Wate Mining Company, LLC |
Arizona |
50% |
SCHEDULE 5
CK Mining Corp. Shareholder Agreement entered into among Copper
King LLC and Wyoming Gold Mining Company, Inc.
Roca Honda Resources, LLC Limited Company Agreement dated as of
July 26, 2007
Operating Agreement for Wate Mining Company, LLC dated February
23, 2011, as amended on May 25, 2011, May 25, 2012 and July 25, 2014
SCHEDULE 6
Covenant Agreement dated June 18, 2015 among Uranerz Energy
Corporation, Johnson County, Wyoming, Energy Fuels Holdings Corp. and UMB Bank,
n.a.
EXHIBIT 6(ee)
1. |
Opinion dated October 16, 2013 in respect of the Arizona
Strip Mines. |
|
|
2. |
Opinions dated July 23, 2012 and July 24, 2012 in respect
of the Colorado Plateau Mines. |
|
|
3. |
Opinions dated July 24, 2012 in respect of the Daneros
Mine. |
|
|
4. |
Opinion dated June 7, 2013 in respect of the Gas Hills
Project. |
|
|
5. |
Opinions dated July 24, 2012 in respect of the Henry
Mountains Complex. |
|
|
6. |
Opinion dated June 7, 2013 in respect of the Roca Honda
Project. |
|
|
7. |
Opinion dated July 24, 2012 in respect of the Sage Plain
Project. |
|
|
8. |
Opinion dated July 24, 2012 in respect of the Sheep
Mountain Project. |
|
|
9. |
Opinion dated October 23, 2013 in respect of the White
Mesa Mill. |
|
|
10. |
Opinion dated July 24, 2012 in respect of the La Sal
Project. |
|
|
11. |
Opinion dated May 31, 2013 in respect of Juniper
Ridge. |
|
|
12. |
Opinion dated July 23, 2012 in respect of the Whirlwind
Mine. |
|
|
13. |
Limited Title Opinion, Hank Project, MB1 et al. Mining
Claims (WMC278641 et al.), Campbell County, Wyoming By Brown, Drew
& Massey, LLP dated October 16, 2009 |
|
o |
First Supplemental Limited Title Opinion, Hank Project,
MB1 et. al. Mining Claims (WMC278641 et. al.), Campbell County, Wyoming
by Brown, Drew & Massey, LLP dated November 29, 2010 |
|
o |
Second Supplemental Limited Title Opinion, Hank Project,
MB1 et. al. Mining Claims (WMC278641 et. al.), Campbell County, Wyoming
by Brown, Drew & Massey, LLP dated December 3, 2012 |
|
o |
Third Supplemental Limited Title Opinion, Hank Project,
MB1 et. al. Mining Claims (WMC278641 et. al.), Campbell County, Wyoming
by Brown, Drew & Massey, LLP dated February 1, 2013 |
|
o |
Fourth Supplemental Limited Title Opinion, Hank Project,
MB1 et. al. Mining Claims (WMC278641 et. al.), Campbell County, Wyoming
by Brown, Drew & Massey, LLP dated August 19, 2013 |
|
o |
Fifth Supplemental Limited Title Opinion, Hank Project,
MB1 et. al. Mining Claims (WMC278641 et. al.), Campbell County, Wyoming
by Brown, Drew & Massey, LLP dated September 5, 2013
|
14. |
Limited Title Opinion, South Doughstick Project, WC 319
et al. Mining Claims (WMC 275263 et al.), Campbell and Johnson Counties,
Wyoming by Brown, Drew & Massey, LLP dated October 27,
2009 |
|
o |
First Supplemental Limited Title Opinion, South
Doughstick Project, WC 319 et al. Mining Claims (WMC 275263 et al.),
Campbell and Johnson Counties, Wyoming by Brown, Drew & Massey, LLP
dated November 29, 2010 |
|
o |
Second Supplemental Limited Title Opinion, South
Doughstick Project, WC 319 et al. Mining Claims (WMC 275263 et al.),
Campbell and Johnson Counties, Wyoming by Brown, Drew & Massey, LLP
dated July 11, 2014 |
15. |
Preliminary Title Opinion, North Jane Project, DS 3
through 18, 100, 101 Mining Claims (Lead File WMC 281326 et al.), Campbell
County, Wyoming by Brown, Drew & Massey, LLP dated December 3,
2009 |
|
|
16. |
Preliminary Title Opinion, North Jane Project, EB 40 et
al. Mining Claims (Lead Filed WMC 14069 et at), Campbell County, Wyoming
by Brown, Drew & Massey, LLP dated December 3, 2009 |
|
|
17. |
Limited Title Opinion, Jane Dough Project, RK 453 et al.
Mining Claims (WMC 274887 et al.), Campbell and Johnson Counties, Wyoming
by Brown, Drew, Massey & Durham, LLP dated July 14, 2014 |
|
|
18. |
Limited Title Opinion, South Doughstick Project, Pax
Irvine Mineral Trust Fee Lease, Johnson County, Wyoming by Brown, Drew
& Massey, LLP dated October 27, 2009 |
|
o |
First Supplemental Limited Title Opinion, South
Doughstick Project, Pax Irvine Mineral Trust Fee Lease, Johnson County,
Wyoming by Brown, Drew & Massey, LLP dated November 29, 2010
|
|
o |
Second Supplemental Limited Title Opinion, South
Doughstick Project, Pax Irvine Mineral Trust Fee Lease, Johnson County,
Wyoming by Brown, Drew, Massey & Durham, LLP dated July 11, 2014
|
19. |
Limited Title Opinion, Jane Dough Project, Pax Irvine
Mineral Trust, et al Fee Leases, Johnson and Campbell Counties, Wyoming
by Brown, Drew, Massey & Durham, LLP dated July 14, 2014 |
|
|
20. |
Preliminary Title Opinion, North Jane Project, Nelroy LLC
et al. Fee Leases, Campbell County, Wyoming by Brown, Drew &
Massey, LLP dated November 25, 2009 |
|
|
21. |
Limited Title Opinion, Nichols Ranch Project, EB 67 et
al. Mining Claims (WMC 277010 et al.), Campbell and Johnson Counties,
Wyoming by Brown, Drew & Massey, LLP dated October 27,
2009 |
|
o |
First Supplemental Limited Title Opinion, Nichols Ranch
Project, EB 67 et. al Mining Claims (WMC 277010 et al.), Campbell and
Johnson Counties, Wyoming by Brown, Drew & Massey, LLP dated
November 29, 2010 |
|
o |
Second Supplemental Limited Title Opinion, Nichols Ranch
Project, EB 67 et. al Mining Claims (WMC 277010 et al.), Campbell and
Johnson Counties, Wyoming by Brown, Drew, Massey & Durham, LLP
dated February 1, 2013 |
|
o |
Third Supplemental Limited Title Opinion, Nichols Ranch
Project, EB 67 et. al Mining Claims (WMC 277010 et al.), Campbell and
Johnson Counties, Wyoming by Brown, Drew, Massey & Durham, LLP
dated August 19, 2013 |
|
o |
Fourth Supplemental Limited Title Opinion, Nichols Ranch
Project, EB 67 et. al Mining Claims (WMC 277010 et al.), Campbell and
Johnson Counties, Wyoming by Brown, Drew, Massey & Durham, LLP
dated September 5, 2013 |
|
o |
Fifth Supplemental Limited Title Opinion, Nichols Ranch
Project, EB 67 et. al Mining Claims (WMC 277010 et al.), Campbell and
Johnson Counties, Wyoming by Brown, Drew, Massey & Durham, LLP
dated July 11, 2014 |
22. |
Limited Title Opinion, Nichols Ranch Project, Betty Lou
Payne et al Fee Leases, Johnson County, Wyoming by Brown, Drew &
Massey, LLP dated October 16, 2009 |
|
o |
First Supplemental Limited Title Opinion, Nichols Ranch
Project, Betty Lou Payne et al Fee Leases, Johnson County, Wyoming by
Brown, Drew & Massey, LLP dated November 29, 2010 |
|
o |
Second Supplemental Limited Title Opinion, Nichols Ranch
Project, Betty Lou Payne et al Fee Leases, Johnson County, Wyoming by
Brown, Drew, Massey & Durham, LLP dated February 1, 2013 |
|
o |
Third Supplemental Limited Title Opinion, Nichols Ranch
Project, Betty Lou Payne et al Fee Leases, Johnson County, Wyoming by
Brown, Drew, Massey & Durham, LLP dated August 19, 2013 |
|
o |
Fourth Supplemental Limited Title Opinion, Nichols Ranch
Project, Betty Lou Payne et al Fee Leases, Johnson County, Wyoming by
Brown, Drew, Massey & Durham, LLP dated September 5, 2013 |
|
o |
Fifth Supplemental Limited Title Opinion, Nichols Ranch
Project, Betty Lou Payne et al Fee Leases, Johnson County, Wyoming by
Brown, Drew, Massey & Durham, LLP dated July 11, 2014
|
23. |
Preliminary Title Status Report Grants Uranium
District properties of Uranium Resources, Inc., McKinley County, New
Mexico (Roca Honda Claims; Endy Claims; and Section 17 mineral estate)
by Fognani & Faught, PLLC dated June 18,
2015 |
EXHIBIT 7(l)
Form of Representation Date Certificate
The undersigned, the duly qualified and elected
[], of Energy Fuels Inc., a company continued under the Business
Corporations Act (Ontario) (the Company), does hereby certify in
such capacity and on behalf of the Company, pursuant to Section 7(l) of
the Sales Agreement, dated September 29, 2015 (the Sales Agreement),
between the Company and Cantor Fitzgerald & Co., that to the best of the
knowledge of the undersigned:
(i)
The representations and warranties of the Company in Section 6 of the
Sales Agreement (A) to the extent such representations and warranties are
subject to qualifications and exceptions contained therein relating to
materiality or Material Adverse Effect, are true and correct on and as of the
date hereof, except for those representations and warranties that speak solely
as of a specific date and which were true and correct as of such date, with the
same force and effect as if expressly made on and as of the date hereof and (B)
to the extent such representations and warranties are not subject to any
qualifications or exceptions, are true and correct in all material respects as
of the date hereof as if made on and as of the date hereof except for those
representations and warranties that speak solely as of a specific date and which
were true and correct as of such date, with the same force and effect as if
expressly made on and as of the date hereof; and
(ii)
The Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied pursuant to
the Sales Agreement at or prior to the date hereof.
ENERGY FUELS INC.
|
By:
________________________________________________ |
|
|
|
Name:
______________________________________________ |
|
|
|
Title:
_______________________________________________ |
Date: []
Exhibit 23
Press Release Dated September 29, 2015
Energy Fuels (AMEX:UUUU)
Historical Stock Chart
From Aug 2024 to Sep 2024
Energy Fuels (AMEX:UUUU)
Historical Stock Chart
From Sep 2023 to Sep 2024