As
filed with the Securities and Exchange Commission on May 15, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
U.S.
GOLDMINING INC.
(Exact
name of registrant as specified in its charter)
Nevada |
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37-1792147 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(I.R.S.
Employer
Identification
Number) |
1188
West Georgia Street, Suite 1830
Vancouver,
BC, Canada V6E 4A2
(604)
388-9788
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Tim
Smith, Chief Executive Officer
U.S.
GoldMining Inc.
1188
West Georgia Street, Suite 1830
Vancouver,
BC, Canada V6E 4A2
(604)
388-9788
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
of all communications, including communications sent to agent for service, should be sent to:
Rick
A. Werner, Esq. |
Rod
Talaifar, Esq. |
Alla
Digilova, Esq. |
Sangra
Moller LLP |
Haynes
and Boone, LLP |
1000
Cathedral Place |
30
Rockefeller Plaza, 26th Floor |
925
West Georgia Street |
New
York, New York 10112 |
Vancouver,
BC, Canada |
Tel.
(212) 659-7300 |
V6C
3L2 |
Fax
(212) 884-8234 |
Tel.:
(604) 662-8808 |
Approximate
date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box: ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
|
|
Emerging
growth company |
☒ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. ☐
THE
REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE
IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
EXPLANATORY
NOTE
This
Registration Statement contains two prospectuses:
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a
base prospectus which covers the offering, issuance and sale by us of up to $40,000,000 of our common stock, preferred stock, warrants
and/or units; and |
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a
sales agreement prospectus covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $5,500,000
of our common stock that may be issued and sold from time to time under the At The Market Offering Agreement (as amended, supplemented
and/or restated from time to time), or the sales agreement, with H.C. Wainwright & Co., LLC as lead agent and the co-agents
party thereto. |
The
base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus
other than the shares under the sales agreement will be specified in a prospectus supplement to the base prospectus. The specific terms
of the securities to be issued and sold under the sales agreement are specified in the sales agreement prospectus that immediately follows
the base prospectus. The $5,500,000 of common stock that may be offered, issued and sold under the sales agreement prospectus is included
in the $40,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the sales
agreement, any portion of the $5,500,000 included in the sales agreement prospectus that is not sold pursuant to the sales agreement
will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement, and if no shares
are sold under the sales agreement, the full $5,500,000 of securities may be sold in other offerings by us pursuant to the base prospectus
and a corresponding prospectus supplement.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED MAY 15, 2024
PROSPECTUS
U.S.
Goldmining Inc.
$40,000,000
Common
Stock
Preferred
Stock
Warrants
Units
We
may offer and sell from time to time, in one or more series or issuances and on terms that we will determine at the time of the offering,
any combination of the securities described in this prospectus, up to an aggregate amount of $40,000,000.
We
will provide specific terms of any offering in a supplement to this prospectus. Any prospectus supplement may also add, update, or change
information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement as well
as the documents incorporated or deemed to be incorporated by reference in this prospectus before you purchase any of the securities
offered hereby.
These
securities may be offered and sold in the same offering or in separate offerings; to or through underwriters, dealers, and agents; or
directly to purchasers. The names of any underwriters, dealers, or agents involved in the sale of our securities, their compensation
and any over-allotment options held by them will be described in the applicable prospectus supplement. See “Plan of Distribution.”
We
are a “smaller reporting company” and “emerging growth company” under the federal securities laws and, as such,
are subject to reduced public company disclosure standards for this prospectus and future filings. See the section entitled “Prospectus
Summary—Implications of Being a Smaller Reporting Company and Emerging Growth Company” for additional information.
Our
common stock and warrants to purchase shares of common stock (the “Warrants”) are listed on the Nasdaq Capital Market under
the symbols “USGO” and “USGOW”, respectively. On May 14, 2024, the last reported sale price of our common stock
and Warrants as reported on the Nasdaq Capital Market was $5.55 and $0.73 per share, respectively. We recommend that you obtain current
market quotations for our common stock and Warrants prior to making an investment decision. We will provide information in any applicable
prospectus supplement regarding any listing of securities other than shares of our common stock and Warrants on any securities exchange.
As
of the date of this prospectus, the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was
approximately $16,789,339, which was calculated based on 12,398,709 shares of outstanding common stock, of which 2,338,348 shares were
held by non-affiliates, and the last reported sale price of our common stock of $7.18 per share on April 8, 2024. Pursuant to General
Instruction I.B.6 of Form S-3, in no event will we sell securities in a public primary offering with a value exceeding one-third of our
public float in any 12-month period, so long as our public float remains below $75 million. During the 12 calendar months prior to and
including the date of this prospectus, we have not offered or sold any securities pursuant to General Instruction I.B.6 of Form S-3.
You
should carefully read this prospectus, any prospectus supplement relating to any specific offering of securities, and all information
incorporated by reference herein and therein.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page 4 of this prospectus and any
similar section included in any accompanying prospectus supplement and in the documents incorporated by reference in this prospectus
for a discussion of the factors you should carefully consider before deciding to purchase these securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (the “SEC”)
using a “shelf” registration process. Under this shelf process, we may, from time to time, sell any combination of the securities
described in this prospectus in one or more offerings up to a total amount of $40,000,000.
This
prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add to, update
or change information contained in the prospectus and, accordingly, to the extent inconsistent, information in this prospectus is superseded
by the information in the prospectus supplement.
The
prospectus supplement to be attached to the front of this prospectus may describe, as applicable: the terms of the securities offered;
the public offering price; the price paid for the securities; net proceeds; and the other specific terms related to the offering of the
securities.
You
should only rely on the information contained or incorporated by reference in this prospectus and any prospectus supplement or issuer
free writing prospectus relating to a particular offering. No person has been authorized to give any information or make any representations
in connection with this offering other than those contained or incorporated by reference in this prospectus, any accompanying prospectus
supplement and any related issuer free writing prospectus in connection with the offering described herein and therein, and, if given
or made, such information or representations must not be relied upon as having been authorized by us. Neither this prospectus nor any
prospectus supplement nor any related issuer free writing prospectus shall constitute an offer to sell or a solicitation of an offer
to buy offered securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation. This
prospectus does not contain all of the information included in the registration statement. For a more complete understanding of the offering
of the securities, you should refer to the registration statement, including its exhibits.
You
should read the entire prospectus and any prospectus supplement and any related issuer free writing prospectus, as well as the documents
incorporated by reference into this prospectus or any prospectus supplement or any related issuer free writing prospectus, before making
an investment decision. Neither the delivery of this prospectus or any prospectus supplement or any issuer free writing prospectus nor
any sale made hereunder shall under any circumstances imply that the information contained or incorporated by reference herein or in
any prospectus supplement or issuer free writing prospectus is correct as of any date subsequent to the date hereof or of such prospectus
supplement or issuer free writing prospectus, as applicable. You should assume that the information appearing in this prospectus, any
prospectus supplement or any document incorporated by reference is accurate only as of the date of the applicable documents, regardless
of the time of delivery of this prospectus or any sale of securities. Our business, financial condition, results of operations and prospects
may have changed since that date.
PROSPECTUS
SUMMARY
This
summary provides an overview of selected information contained elsewhere or incorporated by reference in this prospectus and does not
contain all of the information you should consider before investing in our securities. You should carefully read the prospectus, the
information incorporated by reference and the registration statement of which this prospectus is a part in their entirety before investing
in our securities, including the information discussed under “Risk Factors” in this prospectus and the documents incorporated
by reference and our financial statements and notes thereto that are incorporated by reference in this prospectus. Some of the statements
in this prospectus and the documents incorporated by reference herein constitute forward-looking statements that involve risks and uncertainties.
See information set forth under the section “Special Note Regarding Forward-Looking Statements.” As used in this prospectus,
unless the context otherwise indicates, the terms “we,” “our,” “us,” or “the Company”
refer to U.S. GoldMining Inc., a Nevada corporation, and its subsidiaries taken as a whole.
Overview
We
are a United States domiciled exploration stage company and our sole project is currently the Whistler Project. The Whistler Project
is a gold-copper exploration project located in the Yentna Mining District, approximately 170 km northwest of Anchorage, in Alaska.
We
were incorporated on June 30, 2015, in Alaska as “BRI Alaska Corp.” On September 8, 2022, we redomiciled to Nevada and changed
our name to “U.S. GoldMining Inc.”. We are a subsidiary of GoldMining Inc. (“GoldMining”), a company organized
under the laws of Canada and listed on the Toronto Stock Exchange and NYSE American. GoldMining is a public mineral exploration company
that was incorporated in 2009 and is focused on the acquisition and development of gold assets in the Americas. Our principal executive
offices are located at 1188 West Georgia Street, Suite 1830, Vancouver, British Columbia, Canada V6E 4A2 and our head operating offices
are located at 301 Calista Court, Suite 200, Office 203, Anchorage, Alaska, 99518. Our website address is www.usgoldmining.us. Our shares
of common Stock and Warrants are listed on the Nasdaq Capital Market under the symbols “USGO” and “USGOW”, respectively.
On
April 24, 2023, in connection with the closing of our initial public offering (the “IPO”), we issued 2,000,000 units (the
“Units”), with each Unit consisting of (i) one share of common stock and (ii) a Warrant to purchase one share of common stock
at a price of $10.00 per Unit for gross proceeds of $20,000,000. Each Warrant entitles the holder thereof to acquire one share of common
stock at an exercise price of $13.00 per share for a period of three years from the issue date. In connection with the IPO, we incurred
securities issuance costs of $970,194, of which $650,000 represented cash fees paid to the underwriters. After the IPO, GoldMining continued
to own a controlling interest in us of 9,622,491 shares of common stock and Warrants to purchase up to 122,490 shares of common stock,
representing approximately 79.3% of our outstanding shares of common stock. As of May 15, 2024, GoldMining owned 79.7%.
In
2023, we also commenced our initial confirmatory work program at our 100% owned Whistler Project. Subsequent to the year end, we announced
initial results from such program. We plan to re-commence the drilling program at the Whistler Project at the start of the 2024 field
season. We have not yet finalized the work program, including extent of drilling, for the 2024 year.
On
February 9, 2024, the board of directors approved a change of our fiscal year end from November 30 to December 31, effective beginning
with the next fiscal year, which began on January 1, 2024, and will end on December 31, 2024 (the “Fiscal 2024”). As a result
of the change in fiscal year, there was a one-month transition period beginning on December 1, 2023, and ending on December 31, 2023,
the results of which were reported in the Quarterly Report on Form 10-Q filed for the first quarter of Fiscal 2024 and will be reported
in the Annual Report on Form 10-K to be filed for Fiscal 2024.
Implications
of Being a Smaller Reporting Company and Emerging Growth Company
We
are a “smaller reporting company,” as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), meaning that the market value of our shares held by non-affiliates was less than $700 million and our annual revenue was
less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company if either (i)
the market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million
during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million. As
a smaller reporting company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller
reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent fiscal years of
audited financial statements in our Annual Report on Form 10-K and, similar to emerging growth companies, smaller reporting companies
have reduced disclosure obligations regarding executive compensation. Additionally, as a smaller reporting company, we may continue to
take advantage of the exception from compliance with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of
2002, as amended. If investors consider our common shares less attractive as a result of our election to use the scaled-back disclosure
permitted for smaller reporting companies, there may be a less active trading market for our common shares and our share price may be
more volatile.
We
are also an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012. We will remain an emerging growth
company until the earliest to occur of: (i) the last day of the fiscal year in which we have more than $1.235 billion in annual revenues;
(ii) the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities held by non-affiliates;
(iii) the issuance, in any three-year period, by us of more than $1.0 billion in non-convertible debt securities; and (iv) the last day
of the fiscal year ending after the fifth anniversary of our first sale of common equity securities pursuant to a U.S. registration.
As
an emerging growth company, we may take advantage of certain exemptions from various reporting requirements that are applicable to other
publicly traded entities that are not emerging growth companies. These exemptions include: (i) the option to present only two years of
audited financial statements and related discussion in the section titled “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” in our filings with the SEC; (ii) not being required to comply with the auditor attestation
requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended; (iii) not being required to comply with any requirement that
may be adopted by the Public Company Accounting Oversight Board, or PCAOB, regarding mandatory audit firm rotation or a supplement to
the auditor’s report providing additional information about the audit and the financial statements; (iv) not being required to
submit certain executive compensation matters to shareholder advisory votes, such as “say-on-pay,” “say-on-frequency,”
and “say-on-golden parachutes”; and (v) not being required to disclose certain executive compensation related items such
as the correlation between executive compensation and performance and comparisons of the chief executive officer’s compensation
to median employee compensation.
The
Securities We May Offer
We
may offer up to $40,000,000 of common stock, preferred stock, warrants and/or units in one or more offerings and in any combination.
This prospectus provides you with a general description of the securities we may offer. A prospectus supplement, which we will provide
each time we offer securities, will describe the specific amounts, prices and terms of these securities.
Common
Stock
We
may issue shares of our common stock from time to time. The holders of common stock are entitled to one vote per share. Our certificate
of incorporation does not provide for cumulative voting. All of our directors hold office for one-year terms until the election and qualification
of their successors. The holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared by our
board of directors (the “Board”) out of legally available funds. Upon liquidation, dissolution or winding-up, the holders
of our common stock are entitled to share ratably in all assets that are legally available for distribution. The holders of our common
stock have no preemptive, subscription, redemption or conversion rights. The rights, preferences and privileges of holders of our common
stock are subject to, and may be adversely affected by, the rights of the holders of any series of preferred stock, which may be designated
solely by action of the Board and issued in the future.
Preferred
Stock
We
may issue shares of our preferred stock from time to time, in one or more series. Our Board will determine the rights, preferences, privileges
and restrictions of the preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation
preferences, sinking fund terms and the number of shares constituting any series or the designation of such series, without any further
vote or action by stockholders. Convertible preferred stock will be convertible into our common stock or exchangeable for our other securities.
Conversion may be mandatory or at your option or both and would be at prescribed conversion rates.
If
we sell any series of preferred stock under this prospectus and applicable prospectus supplements, we will fix the rights, preferences,
privileges and restrictions of the preferred stock of such series in the certificate of designation relating to that series. We will
file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that
we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock we are offering
before the issuance of the related series of preferred stock. We urge you to read the applicable prospectus supplement related to the
series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable
series of preferred stock.
Warrants
We
may issue warrants for the purchase of common stock or preferred stock in one or more series. We may issue warrants independently or
together with common stock or preferred stock, and the warrants may be attached to or separate from these securities. We will evidence
each series of warrants by warrant certificates that we will issue under a separate agreement. We may enter into warrant agreements with
a bank or trust company that we select to be our warrant agent. We will indicate the name and address of the warrant agent in the applicable
prospectus supplement relating to a particular series of warrants.
In
this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable prospectus
supplement related to the particular series of warrants being offered, as well as the warrant agreements and warrant certificates that
contain the terms of the warrants. We will file as exhibits to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, the form of warrant agreement or warrant certificate containing the
terms of the warrants we are offering before the issuance of the warrants.
Units
We
may issue units consisting of common stock, preferred stock and/or warrants for the purchase of common stock or preferred stock in one
or more series. In this prospectus, we have summarized certain general features of the units. We urge you, however, to read the applicable
prospectus supplement related to the series of units being offered, as well as the unit agreements that contain the terms of the units.
We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference reports that
we file with the SEC, the form of unit agreement and any supplemental agreements that describe the terms of the series of units we are
offering before the issuance of the related series of units.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment in our securities. Before deciding whether to invest in our securities,
you should carefully consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus
supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing
or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under Item
1A, “Risk Factors,” in our most recent Annual Report on Form 10-K or any updates in our Quarterly Reports on Form 10-Q, together
with all other information appearing in or incorporated by reference into this prospectus or the applicable prospectus supplement, before
deciding whether to purchase any securities being offered. If any of these risks actually occurs, our business, business prospects, financial
condition or results of operations could be seriously harmed. This could cause the trading price of our common stock to decline, resulting
in a loss of all or part of your investment. The risks and uncertainties we have described are not the only ones we face. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. Past financial
performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or
trends in future periods. If any of these risks actually occurs, our business, business prospects, financial condition or results of
operations could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or
part of your investment. Please also read carefully the section below entitled “Special Note Regarding Forward-Looking Statements.”
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, each prospectus supplement and the information incorporated by reference in this prospectus and each prospectus supplement
contain forward-looking statements and forward-looking information within the meaning of Canadian securities laws and the Private Securities
Litigation Reform Act of 1995, collectively referred to as “forward-looking statements”. Forward-looking statements include
statements that relate to our plans, objectives, goals, strategies, future events, future revenue or performance, capital expenditures,
financing needs and other information that is not historical information. Forward-looking statements can often be identified by the use
of terminology such as “subject to”, “believe”, “anticipate”, “plan”, “target”,
“expect”, “intend”, “estimate”, “project”, “outlook”, “may”,
“will”, “should”, “would”, “could”, “can”, the negatives thereof, variations
thereon and similar expressions, or by discussions of strategy. In addition, any statements that refer to expectations, beliefs, plans,
projections, objectives, performance or other characterizations of future events or circumstances, including any underlying assumptions,
are forward-looking. In particular, forward-looking statements include, but are not limited to, statements about:
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anticipated
tonnages and grades of the mineral resources disclosed for the Whistler Project; |
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our
expectations regarding the continuity of mineral deposits; |
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our
expectations regarding raising capital and developing the Whistler Project; |
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our
planned exploration activities on the Whistler Project; |
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expectations
regarding environmental, social or political issues that may affect the exploration or development progress; |
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our
estimates regarding future revenue, expenses and needs for additional financing; and |
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our
ability to attract and retain qualified employees and key personnel. |
These
forward-looking statements are based on our opinions, estimates and assumptions in light of our experience and perception of historical
trends, current conditions and expected future developments, as well as other factors that we currently believe are appropriate and reasonable
in the circumstances, including that:
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the
timing and ability to obtain requisite operational, environmental and other licenses, permits and approvals, including extensions
thereof will occur and proceed as expected; |
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current
gold, silver, base metal and other commodity prices will be sustained, or will improve; |
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the
proposed development of the Whistler Project will be viable operationally and economically and will proceed as expected; |
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any
additional financing required by us will be available on reasonable terms or at all; and |
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we
will not experience any material accident, labor dispute or failure of plant or equipment. |
Despite
a careful process to prepare and review the forward-looking statements, there can be no assurance that the underlying opinions, estimates
and assumptions will prove to be correct.
Forward-looking
statements are necessarily based on a number of opinions, estimates and assumptions that we considered appropriate and reasonable as
of the date such statements are made, are subject to known and unknown risks, uncertainties, assumptions and other factors that may cause
the actual results, level of activity, performance or achievements to be materially different from those expressed or implied by such
forward-looking statements, including but not limited to the risk factors described in greater detail under Item 1A. Risk Factors in
our final prospectus for the IPO filed with the U.S. Securities Exchange Commission on April 20, 2023. Should one or more of these risks
and uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those described
in forward-looking statements.
These
factors should not be construed as exhaustive and should be read with other cautionary statements in this document. Although we have
attempted to identify important risk factors that could cause actual results to differ materially from those contained in forward-looking
statements, there may be other risk factors not presently known to us or that we presently believe are not material that could also cause
actual results or future events to differ materially from those expressed in such forward-looking statements. There can be no assurance
that such information will prove to be accurate, as actual results and future events could differ materially from those anticipated in
such information. Accordingly, readers should not place undue reliance on forward-looking statements, which speaks only as of the date
made. The forward-looking statements contained in this document represents our expectations as of the date of this prospectus (or as
the date they are otherwise stated to be made) and are subject to change after such date. However, we disclaim any intention or obligation
or undertaking to update or revise any forward-looking statements whether as a result of new information, future events or otherwise,
except as required under applicable securities laws.
USE
OF PROCEEDS
We
cannot assure you that we will receive any proceeds in connection with securities which may be offered pursuant to this prospectus. Unless
we specify another use in the applicable prospectus supplement, we will use the net proceeds from the sale of the securities offered
by us for general corporate purposes, which may include, among other things, working capital and/or capital expenditure. Among other
potential uses, we may also use the net proceeds from the sale of the securities offered by us pursuant to this prospectus to (i) fund
exploration and development activities, including, but not limited to, planned exploration work at the Whistler Project, (ii) undertake
community consultation, permitting/reporting and environmental baseline and heritage studies and (iii) identify future acquisition opportunities
as they may arise and as may be determined by us. We may set forth additional information on the use of net proceeds from the sale of
the securities we offer under this prospectus in a prospectus supplement related to a specific offering.
Investors
are cautioned, however, that expenditures may vary substantially from these uses. Investors will be relying on the judgment of our management,
who will have broad discretion regarding the application of the proceeds of this offering. The amounts and timing of our actual expenditures
will depend upon numerous factors, including the amount of cash generated by our operations, the level of competition and other operational
factors. We may find it necessary or advisable to use portions of the proceeds from this offering for other purposes.
From
time to time, we evaluate these and other factors and we anticipate continuing to make such evaluations to determine if the existing
allocation of resources, including the proceeds of this offering, is being optimized. Circumstances that may give rise to a change in
the use of proceeds include:
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change in business plan or strategy; |
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our
ability to select and negotiate definitive agreements with acquisition candidates; |
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the
need or desire on our part to accelerate, increase or eliminate existing exploration initiatives due to, among other things, changing
market conditions and competitive developments; and |
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the
availability of other sources of cash including cash flow from operations and new bank debt financing arrangements, if any. |
Pending
other uses, we intend to invest the proceeds to us in investment-grade, interest-bearing securities such as money market funds, certificates
of deposit, or direct or guaranteed obligations of the U.S. government, or hold as cash. We cannot predict whether the proceeds invested
will yield a favorable, or any, return.
DESCRIPTION
OF CAPITAL STOCK
The
following description of common stock and preferred stock summarizes the material terms and provisions of the common stock and
preferred stock that we may offer under this prospectus, but is not complete. For the complete terms of our common stock and
preferred stock, please refer to our articles of incorporation, as amended (“Articles of Incorporation”), any
certificates of designation for our preferred stock, and our bylaws (“Bylaws”), as may be amended from time to time.
While the terms we have summarized below will apply generally to any future common stock or preferred stock that we may offer, we
will describe the specific terms of any series of preferred stock in more detail in the applicable prospectus supplement. If we so
indicate in a prospectus supplement, the terms of any preferred stock we offer under that prospectus supplement may differ from the
terms we describe below.
General
Our
authorized capital stock consists of 300,000,000 shares of our common stock, par value $0.001 per share and 10,000,000 shares of preferred
stock, par value $0.001 per share. As of the date of this prospectus, there were 12,398,709 shares of our common stock issued and outstanding
held of record by stockholders. Each such outstanding share of our common stock is validly issued, fully paid and non-assessable.
The
authorized and unissued shares of common stock and the authorized and undesignated shares of preferred stock are available for issuance
without further action by our stockholders, unless such action is required by applicable law or the rules of any stock exchange on which
our securities may be listed. Unless approval of our stockholders is so required, our Board does not intend to seek stockholder approval
for the issuance and sale of our common stock or preferred stock.
Common
Stock
Voting.
The holders of our common stock are entitled to one vote for each outstanding share of common stock owned by that stockholder on
every matter properly submitted to the stockholders for their vote. Stockholders are not entitled to vote cumulatively for the election
of directors. Except for the election of directors, which are elected by a plurality vote, a majority vote of common stockholders is
generally required to take action under our Articles of Incorporation and Bylaws.
Conversion,
Redemption and Preemptive Rights. Holders of our common stock have no conversion, redemption, preemptive, subscription or similar
rights.
Dividends.
The holders of outstanding shares of common stock are entitled to receive dividends out of assets legally available therefore at such
times and in such amounts as our board of directors may from time to time determine. Holders of common stock will share equally on a
per share basis in any dividend declared by the board of directors.
Preferred
Stock
We
are authorized to issue from time to time up to 10,000,000 shares of preferred stock. The board of directors will have the authority
to issue this preferred stock in one or more series and to establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences, and rights of the shares of each such series and any qualifications, limitations
or restrictions thereof, without further vote or action by the stockholders. If shares of preferred stock with voting rights are issued,
such issuance could affect the voting rights of the holders of our common stock by increasing the number of outstanding shares having
voting rights, and by the creation of class or series voting rights. If the board of directors authorized the issuance of shares of preferred
stock with conversion rights, the number of shares of our common stock outstanding could potentially be increased by up to the authorized
amount. Issuance of preferred stock could, under certain circumstances, have the effect of delaying or preventing a change in control
of the Company and may adversely affect the rights of the holders of our common stock. Also, preferred stock could have preferences over
our common stock (and other series of preferred stock) with respect to dividend and liquidation rights.
Anti-Takeover
Effects of Various Provisions of Nevada Law and Our Articles of Incorporation and Bylaws.
Provisions
of the Nevada Corporation Law and our Articles of Incorporation and Bylaws could make it more difficult to acquire us by means of a tender
offer, a proxy contest or otherwise, or to remove incumbent officers and directors. These provisions, summarized below, would be expected
to discourage certain types of coercive takeover practices and takeover bids our board of directors may consider inadequate and to encourage
persons seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection of our ability
to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us will outweigh the disadvantages
of discouraging takeover or acquisition proposals because, among other things, negotiation of these proposals could result in an improvement
of their terms.
Preferred
Stock. Our Articles of Incorporation permit our board of directors to issue our preferred stock with voting, conversion and exchange
rights that could negatively affect the voting power or other rights of our common stockholders, and the board of directors could take
that action without stockholder approval. The issuance of our preferred stock could delay or prevent a change of control of the Company.
Board
Vacancies to be Filled by Remaining Directors and Not Stockholders. Our Bylaws provide that any vacancies on the board of directors,
including any newly created directorships, will be filled by the affirmative vote of the majority of the remaining directors then in
office, even if such directors constitute less than a quorum, or by a sole remaining director.
Removal
of Directors by Stockholders. Our Bylaws and the Nevada Corporation Law provide that directors may be removed by stockholders only
by the affirmative vote of the holders of at least two-thirds of the voting power of the issued and outstanding capital stock entitled
to vote at a meeting of the stockholders. In order to remove a director by written consent, such consent must be signed by the holders
of all outstanding shares entitled to vote for the election of directors.
Stockholder
Action. Our Bylaws preclude stockholders from calling special meetings. Our Bylaws require stockholder action by written consent
for the election or removal of directors to be signed by the holders of all outstanding shares entitled to vote thereon for such consent
to be effective.
Advance
Notice of Director Nominations and Stockholder Proposals. Our Bylaws contain advance notice procedures for stockholders to make nominations
of candidates for election as directors or to bring other business before the annual meeting of stockholders. As specified in our Bylaws,
director nominations and the proposal of business to be considered by stockholders may be made only pursuant to a notice of meeting,
at the direction of the board of directors or by a stockholder who is entitled to vote at the meeting and who has complied with the advance
notice procedures that are provided in our Bylaws.
To
be timely, a nomination of a director by a stockholder or notice for business to be brought before an annual meeting by a stockholder
must be delivered to our secretary at our principal executive offices not later than 45 days nor earlier than 75 days prior to the first
anniversary of the date on which we first mailed our proxy materials or a notice of availability of proxy materials for the preceding
year’s annual meeting; provided, however, that in the event that the date of an annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date, for notice by the stockholder to be timely, it must be delivered not earlier
than the 120th day prior to such annual meeting and not later than the close of business on the later of: (i) the 90th
day prior to such annual meeting; or (ii) the 10th day following the day on which public announcement of the date of
such meeting is first made, whichever first occurs.
In
the event a special meeting of stockholders is called for the purpose of electing one or more directors, any stockholder entitled to
vote may nominate a person or persons as specified in our Bylaws, but only if the stockholder notice is delivered to our secretary at
our principal executive offices not later than the close of business on the later of: (i) the 90th day prior to such special
meeting; or (ii) the 10th day following the day on which public announcement is first made of the date of the special meeting
and of the nominees proposed by our board of directors to be elected at such meeting.
Amendments
to our Articles of Incorporation and Bylaws. Under the Nevada Corporation Law, amendments to the Articles of Incorporation require
a board resolution be submitted to the stockholders for approval, followed by stockholder approval. Our Bylaws may be altered, amended,
or repealed in the sole and absolute discretion of our board of directors.
No
Cumulative Voting. Our Articles of Incorporation prohibits cumulative voting in the election of directors.
Transfer
Agent and Registrar
The
transfer agent and registrar for our shares of common stock is Continental Stock Transfer & Trust Company, a New York limited liability
trust company, with offices at 1 State Street Plaza, New York, New York 10004.
DESCRIPTION
OF WARRANTS
As
of May 15, 2024, there were outstanding warrants to purchase up to 1,741,292 shares of common stock.
We
may issue warrants for the purchase of common stock or preferred stock in one or more series. We may issue warrants independently or
together with common stock or preferred stock, and the warrants may be attached to or separate from these securities.
We
will evidence each series of warrants by warrant certificates that we may issue under a separate agreement. We may enter into a warrant
agreement with a warrant agent. Each warrant agent may be a bank or a transfer agent that we select which has its principal office in
the United States. We may also choose to act as our own warrant agent. We will indicate the name and address of any such warrant agent
in the applicable prospectus supplement relating to a particular series of warrants.
We
will describe in the applicable prospectus supplement the terms of the series of warrants, including:
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offering price and aggregate number of warrants offered; |
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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in
the case of warrants to purchase common stock or preferred stock, the number or amount of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the price at which and currency in which these shares may be
purchased upon such exercise; |
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the
manner of exercise of the warrants, including any cashless exercise rights; |
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the
warrant agreement under which the warrants will be issued; |
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
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anti-dilution
provisions of the warrants, if any; |
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the
terms of any rights to redeem or call the warrants; |
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the
dates on which the right to exercise the warrants will commence and expire or, if the warrants are not continuously exercisable during
that period, the specific date or dates on which the warrants will be exercisable; |
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the
manner in which the warrant agreement and warrants may be modified; |
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the
identities of the warrant agent and any calculation or other agent for the warrants; |
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federal
income tax consequences of holding or exercising the warrants; |
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the
terms of the securities issuable upon exercise of the warrants; |
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any
securities exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be
listed or quoted; and |
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including, in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments
upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to 5:00 P.M. eastern time, the close of business, on the expiration date that
we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with
specified information, and paying the required exercise price by the methods provided in the applicable prospectus supplement. We will
set forth on the reverse side of the warrant certificate, and in the applicable prospectus supplement, the information that the holder
of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants.
Enforceability
of Rights By Holders of Warrants
Any
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action
the holder’s right to exercise, and receive the securities purchasable upon exercise of, its warrants in accordance with their
terms.
Warrant
Agreement Will Not Be Qualified Under Trust Indenture Act
No
warrant agreement will be qualified as an indenture, and no warrant agent will be required to qualify as a trustee, under the Trust Indenture
Act. Therefore, holders of warrants issued under a warrant agreement will not have the protection of the Trust Indenture Act with respect
to their warrants.
Governing
Law
Unless
we provide otherwise in the applicable prospectus supplement, each warrant agreement and any warrants issued under the warrant agreements
will be governed by New York law.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus or any prospectus supplement in any combination.
Each unit will be issued so that the holder of the unit is also the holder, with the rights and obligations of a holder, of each security
included in the unit. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be
held or transferred separately, at any time or at any times before a specified date or upon the occurrence of a specified event or occurrence.
The
applicable prospectus supplement will describe:
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the
designation and the terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately; |
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unit agreement under which the units will be issued; |
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provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
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PLAN
OF DISTRIBUTION
We
may sell the securities offered pursuant to this prospectus from time to time in one or more transactions, including, without limitation:
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or through underwriters; |
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through
broker-dealers (acting as agent or principal); |
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through
agents; |
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directly
by us to one or more purchasers (including our affiliates and stockholders), through a specific bidding or auction process, a rights
offering or otherwise; |
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a combination of any such methods of sale; or |
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through
any other methods described in a prospectus supplement or free writing prospectus. |
The
distribution of securities may be effected, from time to time, in one or more transactions, including:
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block
transactions (which may involve crosses) and transactions on the Nasdaq Capital Market or any other organized market where the securities
may be traded; |
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement or free writing
prospectus; |
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ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
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sales
“at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; and |
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sales
in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
The
applicable prospectus supplement or free writing prospectus will describe the terms of the offering of the securities, including:
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name or names of any underwriters, if, and if required, any dealers or agents; |
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the
purchase price of the securities and the proceeds we will receive from the sale; |
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any
underwriting discounts and other items constituting underwriters’ compensation; |
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any
discounts or concessions allowed or re-allowed or paid to dealers; and |
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any
securities exchange or market on which the securities may be listed or traded. |
We
may distribute the securities from time to time in one or more transactions at:
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fixed price or prices, which may be changed; |
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market
prices prevailing at the time of sale; |
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prices
related to such prevailing market prices; or |
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negotiated
prices. |
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each
underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters
and any dealers) in a prospectus supplement or free writing prospectus. The securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting
syndicate is used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used
in the sale, the offered securities will be acquired by the underwriters for their own accounts and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the
time of sale. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from
time to time. Unless otherwise set forth in the prospectus supplement or free writing prospectus, the obligations of the underwriters
to purchase the offered securities will be subject to conditions precedent, and the underwriters will be obligated to purchase all of
the offered securities, if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering price,
with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement or free writing prospectus.
The terms of any over-allotment option will be set forth in the prospectus supplement or free writing prospectus for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the
securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by
the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement
or free writing prospectus.
We
may sell securities in an “at the market” offering that may be made from time to time for our common stock through or to
a sales agent or principal. We may sell the securities directly or through agents we designate from time to time. We will name any agent
involved in the offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement.
Unless the prospectus supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement or free writing prospectus pursuant to delayed delivery contracts providing for payment
and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for
solicitation of these contracts in the prospectus supplement or free writing prospectus.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the
securities for whom they act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase securities directly for the purpose of resale or distribution,
may be deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of the common
stock by them may be deemed to be underwriting discounts and commissions under the Securities Act of 1933, as amended (the “Securities
Act”). No FINRA member firm may receive compensation in excess of that allowable under FINRA rules, including Rule 5110, in connection
with the offering of the securities.
We
may provide agents, underwriters and other purchasers with indemnification against particular civil liabilities, including liabilities
under the Securities Act or contribution with respect to payments that the agents, underwriters or other purchasers may make with respect
to such liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
To
facilitate the public offering of a series of securities, persons participating in the offering may engage in transactions in accordance
with Regulation M under the Exchange Act that stabilize, maintain, or otherwise affect the market price of the securities. This may include
over-allotments or short sales of the securities, which involves the sale by persons participating in the offering of more securities
than have been sold to them by us. In addition, those persons may stabilize or maintain the price of the securities by bidding for or
purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to underwriters or dealers
participating in any such offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions.
The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might
otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at any time. We make no representation or
prediction as to the direction or magnitude of any effect that the transactions described above, if implemented, may have on the price
of our securities.
Unless
otherwise specified in the applicable prospectus supplement or free writing prospectus, any common stock sold pursuant to a prospectus
supplement will be eligible for listing on the Nasdaq Capital Market, subject to official notice of issuance. Any underwriters who are
qualified market makers to whom securities are sold by us for public offering and sale may make a market in the securities in accordance
with Rule 103 of Regulation M, but such underwriters will not be obligated to do so and may discontinue any market making at any time
without notice.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will be sold
in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not be sold unless
they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement
is available and complied with.
To
the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon by Haynes and Boone, LLP, New York, New York.
EXPERTS
The
financial statements of U.S. Goldmining Inc. as of November 30, 2023 and 2022, and for each of the two years in the period ended November
30, 2023, incorporated by reference in this prospectus, have been audited by Deloitte LLP, an independent registered public accounting
firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm given
on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the informational requirements of the Exchange Act and in accordance therewith file annual, quarterly and current reports,
proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements
and other information regarding registrants that file electronically with the SEC. The address of the SEC’s website is www.sec.gov.
We
make available free of charge on or through our website at www.usgoldmining.us, our Annual Reports on Form 10-K and Quarterly Reports
on Form 10-Q and amendments to those reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable
after we electronically file such material with the SEC.
We
have filed with the SEC a registration statement under the Securities Act relating to the offering of these securities. The registration
statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus does
not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement for free
at www.sec.gov.
We
have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of
this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” the information we have filed with it, which means that we can disclose important
information to you by referring you to those documents. The information we incorporate by reference is an important part of this prospectus,
and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference
the documents listed below and any future documents (excluding information furnished pursuant to Items 2.02 and 7.01 of Form 8-K) we
file with the SEC pursuant to Sections l3(a), l3(c), 14 or l5(d) of the Exchange Act subsequent to the date of this prospectus and prior
to the termination of the offering:
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Our
Annual Report on Form 10-K for the fiscal year ended November 30, 2023, filed with the Securities and Exchange Commission on February 21, 2024, as
amended on Form 10-K/A filed with the SEC on April 24, 2024; |
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Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the Securities and Exchange Commission on May 10, 2024; |
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Our
Current Reports on Form 8-K filed with the Securities and Exchange Commission on February 13, 2024, and March 19, 2024; and |
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The
description of our common stock contained in our Registration Statement on Form
8-A, filed on April 19, 2023, pursuant to Section 12(b) of the Exchange Act, which incorporates by reference the description
of the shares of our common stock contained in the “Description of Securities” filed as Exhibit 4.4 to our Annual Report
on Form 10-K/A for the year ended November 30, 2023, filed with the SEC on April 24, 2024, and any amendment or report filed with the
Securities and Exchange Commission for purposes of updating such description. |
All
filings filed by us pursuant to the Exchange Act after the date of the initial filing of this registration statement and prior to the
effectiveness of such registration statement (excluding information furnished pursuant to Items 2.02 and 7.01 of Form 8-K) shall also
be deemed to be incorporated by reference into the prospectus.
You
should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide
you with different information. Any statement contained in a document incorporated by reference into this prospectus will be deemed to
be modified or superseded for the purposes of this prospectus to the extent that a later statement contained in this prospectus or in
any other document incorporated by reference into this prospectus modifies or supersedes the earlier statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. You should not assume
that the information in this prospectus is accurate as of any date other than the date of this prospectus or the date of the documents
incorporated by reference in this prospectus.
We
will provide without charge to each person to whom a copy of this prospectus is delivered, upon written or oral request, a copy of any
or all of the reports or documents that have been incorporated by reference in this prospectus but not delivered with this prospectus
(other than an exhibit to these filings, unless we have specifically incorporated that exhibit by reference in this prospectus). Any
such request should be addressed to us at: 1188 West Georgia Street, Suite 1830, Vancouver, BC, Canada V6E 4A2, Attention: Tyler Wong,
Interim Chief Financial Officer, or made by phone at (604) 388-9788. You may also access the documents incorporated by reference in this
prospectus through our website at www.usgoldmining.us. Except for the specific incorporated documents listed above, no information available
on or through our website shall be deemed to be incorporated in this prospectus or the registration statement of which it forms a part.
$40,000,000
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
UNITS
PROSPECTUS
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED MAY 15, 2024
PROSPECTUS
U.S.
GoldMining Inc.
Up
to $5,500,000
Common
Stock
We
have entered into an At The Market Offering Agreement, dated May 15, 2024 (as the same may be amended, supplemented and/or restated from
time to time, or the “sales agreement”), with H.C. Wainwright & Co., LLC as lead agent (the “Lead
Agent”) and the co-agents party thereto (collectively with the Lead Agent, the “Sales Agents” and each
a “Sales Agent”), relating to the sale of shares of our common stock, par value $0.001 per share, having an aggregate
offering price of up to $5,500,000 from time to time through the Sales Agent selected by the Company (the “Designated Agent”),
acting as sales agents or principals.
As
of the date of this prospectus, the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was
approximately $16,789,339, which was calculated based on 12,398,709 shares of outstanding common stock, of which 2,338,348 shares were
held by non-affiliates, and the last reported sale price of our common stock of $7.18 per share on April 8, 2024. Pursuant to General
Instruction I.B.6 of Form S-3, in no event will we sell securities in a public primary offering with a value exceeding one-third of our
public float in any 12-month period, so long as our public float remains below $75 million. During the 12 calendar months prior to and
including the date of this prospectus (excluding this offering), we have not offered or sold any securities pursuant to General Instruction
I.B.6 of Form S-3.
Sales
of our common stock, if any, under this prospectus will be made by any method permitted by law deemed to be “at the market”
offering as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities Act, including, without limitation, sales
made directly on or through the Nasdaq Capital Market, the trading market for our common stock, or any other existing trading market
in the United States for our common stock, sales made to or through a market maker other than on an exchange or otherwise, directly to
a sales agent as principal, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing
market prices and/or in any other method permitted by law. Under the sales agreement, the Designated Agent is not required to sell any
specific number or dollar amount of securities, but to act as our sales agent and use commercially reasonable efforts consistent with
its normal trading and sales practices to sell on our behalf all of the shares of common stock requested to be sold by us on mutually
agreed terms between the Designated Agent and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
None of our shares of common stock will be offered or sold in Canada under this prospectus and the accompanying base prospectus.
The
Designated Agent will be entitled to compensation at a fixed cash commission rate of 2.5% of the gross sales price per share sold by
it under the sales agreement. See “Plan of Distribution” beginning on page 9 for additional information regarding the compensation
to be paid to the Designated Agent. In connection with the sale of the shares of common stock on our behalf, each Sales Agent
will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of each Sales
Agent will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to
the Sales Agents with respect to certain liabilities, including liabilities under the Securities Act.
We
are a “smaller reporting company” and “emerging growth company” under the federal securities laws and, as such,
are subject to reduced public company disclosure standards for this prospectus and future filings. See the section entitled “Prospectus
Summary—Implications of Being a Smaller Reporting Company and Emerging Growth Company” for additional information.
Investing
in our securities involves a high degree of risk. See “Risk Factors” beginning on page 3 of this prospectus, the accompanying
base prospectus and any similar section included in any accompanying prospectus supplement and in the documents incorporated by reference
in this prospectus and the accompanying base prospectus for a discussion of the factors you should carefully consider before deciding
to purchase these securities.
Our
common stock and warrants to purchase shares of common stock (the “Warrants”) are listed on the Nasdaq Capital Market under
the symbols “USGO” and “USGOW”, respectively. On May 14, 2024, the last reported sale price of our common stock
and Warrants as reported on the Nasdaq Capital Market was $5.55 and $0.73 per share, respectively.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
Lead
Agent
H.C.
Wainwright & Co.
Co-Agents
Laurentian
Bank Securities |
|
Roth
Capital Partners |
The
date of this prospectus is , 2024.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission using a “shelf”
registration process. This prospectus relates to the offering of our common stock. Before buying any of the common stock that we are
offering, we urge you to carefully read this prospectus, the accompanying base prospectus and the information incorporated by
reference as described under the heading “Where You Can Find More Information” and “Incorporation of Certain Information
by Reference.” These documents contain important information that you should consider when making your investment decision.
This
prospectus describes the specific terms of the common stock we are offering and also adds to and updates information contained in the
documents incorporated by reference into this prospectus. To the extent there is a conflict between the information contained in this
prospectus, on the one hand, and the information contained in any document incorporated by reference in this prospectus, on the other
hand, you should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement
in another document having a later date—for example, a document incorporated by reference into this prospectus—the statement
in the document having the later date modifies or supersedes the earlier statement.
You
should only rely on the information contained or incorporated by reference in this prospectus, the accompanying base prospectus
and any issuer free writing prospectus that we may authorize for use in connection with this offering. Neither we nor the Sales Agents
have been authorized to give any information or make any representations in connection with this offering other than those contained
or incorporated by reference in this prospectus, the accompanying base prospectus and any related issuer free writing prospectus
in connection with the offering described herein and therein, and, if given or made, such information or representations must not be
relied upon as having been authorized by us. Neither this prospectus nor any related issuer free writing prospectus shall constitute
an offer to sell or a solicitation of an offer to buy offered securities in any jurisdiction in which it is unlawful for such person
to make such an offering or solicitation. This prospectus does not contain all of the information included in the registration statement.
For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits.
You
should read the entire prospectus, the accompanying base prospectus and any related issuer free writing prospectus, as well as
the documents incorporated by reference into this prospectus, the accompanying base prospectus or any related issuer free writing
prospectus, before making an investment decision. Neither the delivery of this prospectus, the accompanying base prospectus or
any issuer free writing prospectus nor any sale made hereunder shall under any circumstances imply that the information contained or
incorporated by reference herein, the accompanying base prospectus or in any issuer free writing prospectus is correct as of any
date subsequent to the date of this prospectus, the accompanying base prospectus or of such issuer free writing prospectus. You
should assume that the information appearing in this prospectus, the accompanying base prospectus or any document incorporated
by reference is accurate only as of the date of the applicable documents, regardless of the time of delivery of this prospectus or any
sale of securities. Our business, financial condition, results of operations and prospects may have changed since that date.
PROSPECTUS
SUMMARY
This
summary provides an overview of selected information contained elsewhere or incorporated by reference in this prospectus and does not
contain all of the information you should consider before investing in our securities. You should carefully read the prospectus, the
information incorporated by reference and the registration statement of which this prospectus is a part in their entirety before investing
in our securities, including the information discussed under “Risk Factors” in this prospectus and the documents incorporated
by reference and our financial statements and notes thereto that are incorporated by reference in this prospectus. Some of the statements
in this prospectus and the documents incorporated by reference herein constitute forward-looking statements that involve risks and uncertainties.
See information set forth under the section “Special Note Regarding Forward-Looking Statements.” As used in this prospectus,
unless the context otherwise indicates, the terms “we,” “our,” “us,” or “the Company”
refer to U.S. GoldMining Inc., a Nevada corporation, and its subsidiaries taken as a whole.
Overview
We
are a United States domiciled exploration stage company and our sole project is currently the Whistler Project. The Whistler Project
is a gold-copper exploration project located in the Yentna Mining District, approximately 170 km northwest of Anchorage, in Alaska.
We
were incorporated on June 30, 2015, in Alaska as “BRI Alaska Corp.” On September 8, 2022, we redomiciled to Nevada and changed
our name to “U.S. GoldMining Inc.”. We are a subsidiary of GoldMining Inc. (“GoldMining”), a company organized
under the laws of Canada and listed on the Toronto Stock Exchange and NYSE American. GoldMining is a public mineral exploration company
that was incorporated in 2009 and is focused on the acquisition and development of gold assets in the Americas. Our principal executive
offices are located at 1188 West Georgia Street, Suite 1830, Vancouver, British Columbia, Canada V6E 4A2 and our head operating offices
are located at 301 Calista Court, Suite 200, Office 203, Anchorage, Alaska, 99518. Our website address is www.usgoldmining.us. Our shares
of common Stock and Warrants are listed on the Nasdaq Capital Market under the symbols “USGO” and “USGOW”, respectively.
On
April 24, 2023, in connection with the closing of our initial public offering (the “IPO”), we issued 2,000,000 units (the
“Units”), with each Unit consisting of (i) one share of common stock and (ii) a Warrant to purchase one share of common stock
at a price of $10.00 per Unit for gross proceeds of $20,000,000. Each Warrant entitles the holder thereof to acquire one share of common
stock at an exercise price of $13.00 per share for a period of three years from the issue date. In connection with the IPO, we incurred
securities issuance costs of $970,194, of which $650,000 represented cash fees paid to the underwriters. After the IPO, GoldMining continued
to own a controlling interest in us of 9,622,491 shares of common stock and Warrants to purchase up to 122,490 shares of common stock,
representing approximately 79.3% of our outstanding shares of common stock. As of May 15, 2024, GoldMining owned 79.7%.
In
2023, we also commenced our initial confirmatory work program at our 100% owned Whistler Project. Subsequent to the year end, we announced
initial results from such program. We plan to re-commence the drilling program at the Whistler Project at the start of the 2024 field
season. We have not yet finalized the work program, including extent of drilling, for the 2024 year.
On
February 9, 2024, the board of directors approved a change of our fiscal year end from November 30 to December 31, effective beginning
with the next fiscal year, which began on January 1, 2024, and will end on December 31, 2024 (the “Fiscal 2024”). As a result
of the change in fiscal year, there was a one-month transition period beginning on December 1, 2023, and ending on December 31, 2023,
the results of which were reported in the Quarterly Report on Form 10-Q filed for the first quarter of Fiscal 2024 and will be reported
in the Annual Report on Form 10-K to be filed for Fiscal 2024.
Implications
of Being a Smaller Reporting Company and Emerging Growth Company
We
are a “smaller reporting company,” as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), meaning that the market value of our shares held by non-affiliates was less than $700 million and our annual revenue was
less than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company if either (i)
the market value of our shares held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100 million
during the most recently completed fiscal year and the market value of our shares held by non-affiliates is less than $700 million. As
a smaller reporting company, we may continue to rely on exemptions from certain disclosure requirements that are available to smaller
reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most recent fiscal years of
audited financial statements in our Annual Report on Form 10-K and, similar to emerging growth companies, smaller reporting companies
have reduced disclosure obligations regarding executive compensation. Additionally, as a smaller reporting company, we may continue to
take advantage of the exception from compliance with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of
2002, as amended. If investors consider our common shares less attractive as a result of our election to use the scaled-back disclosure
permitted for smaller reporting companies, there may be a less active trading market for our common shares and our share price may be
more volatile.
We
are also an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012. We will remain an emerging growth
company until the earliest to occur of: (i) the last day of the fiscal year in which we have more than $1.235 billion in annual revenues;
(ii) the date we qualify as a “large accelerated filer,” with at least $700 million of equity securities held by non-affiliates;
(iii) the issuance, in any three-year period, by us of more than $1.0 billion in non-convertible debt securities; and (iv) the last day
of the fiscal year ending after the fifth anniversary of our first sale of common equity securities pursuant to a U.S. registration.
As
an emerging growth company, we may take advantage of certain exemptions from various reporting requirements that are applicable to other
publicly traded entities that are not emerging growth companies. These exemptions include: (i) the option to present only two years of
audited financial statements and related discussion in the section titled “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” in our filings with the SEC; (ii) not being required to comply with the auditor attestation
requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended; (iii) not being required to comply with any requirement that
may be adopted by the Public Company Accounting Oversight Board, or PCAOB, regarding mandatory audit firm rotation or a supplement to
the auditor’s report providing additional information about the audit and the financial statements; (iv) not being required to
submit certain executive compensation matters to shareholder advisory votes, such as “say-on-pay,” “say-on-frequency,”
and “say-on-golden parachutes”; and (v) not being required to disclose certain executive compensation related items such
as the correlation between executive compensation and performance and comparisons of the chief executive officer’s compensation
to median employee compensation.
THE
OFFERING
Common
stock offered by us |
|
Shares
of our common stock having an aggregate offering price of up to $5,500,000. |
|
|
|
Common
stock to be outstanding after the offering(1) |
|
Up
to 13,359,407 shares, assuming the issuance of 960,698 shares at an assumed offering price of $5.725 per share, which was
the closing price of our common stock on the Nasdaq Capital Market on May 13, 2024. The actual number of shares issued will vary
depending on the sales price at which shares may be sold from time to time during this offering. |
|
|
|
Manner
of offering |
|
Sales
of our common stock, if any, under this prospectus will be made by any method permitted by law deemed to be an “at the market”
offering as defined in Rule 415 promulgated under the Securities Act, including, without limitation, sales made directly on or through
the Nasdaq Capital Market, or any other existing trading market in the United States for our common stock. The Designated Agent is
not required to sell any specific number or dollar amount of shares, but will act as our sales agent and use commercially reasonable
efforts consistent with its normal trading and sales practices to sell on our behalf all of the shares of common stock requested
to be sold by us on mutually agreed terms between the Designated Agent and us. See section titled “Plan of Distribution”
on page 9 of this prospectus. None of our securities will be offered or sold in Canada pursuant to this prospectus. |
|
|
|
Use
of proceeds |
|
We
intend to use the net proceeds from this offering for general corporate purposes, which may include, among other things, working
capital and/or capital expenditure. Please see “Use of Proceeds” on page 6 of this prospectus. |
|
|
|
Risk
factors |
|
Investing
in our securities involves a high degree of risk. You should read the “Risk Factors” section beginning on page 3 of this
prospectus and in the documents incorporated by reference in this prospectus for a discussion of factors to consider before deciding
to invest in our common stock. |
|
|
|
Nasdaq
Capital Market symbol |
|
USGO. |
(1)
Based on 12,398,709 shares of common stock outstanding as of March 31, 2024, and excludes the following securities as of that date:
|
● |
181,550
shares of common stock issuable upon the exercise of stock options under our equity incentive plans, with a weighted average exercise
price of $10.00 per share; |
|
|
|
|
● |
1,741,292
shares of common stock issuable upon the exercise of warrants outstanding at a weighted average exercise price of $13.00 per share;
and |
|
|
|
|
● |
1,058,320
shares of common stock available for future grants under our equity incentive plans. |
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. Before deciding whether to invest in our common stock, you should carefully
consider the risks and uncertainties described below, together with the information under the heading “Risk Factors” in our
most recent Annual Report on Form 10-K for the fiscal year ended November 30, 2023, as amended, all of which are incorporated herein
by reference, as updated or superseded by the risks and uncertainties described under similar headings in the other documents that are
filed after the date hereof and incorporated by reference into this prospectus, together with all of the other information contained
or incorporated by reference in this prospectus. The risks and uncertainties we have described are not the only ones we face. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. Past financial
performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or
trends in future periods. If any of these risks actually occurs, our business, business prospects, financial condition or results of
operations could be seriously harmed. This could cause the trading price of our common stock to decline, resulting in a loss of all or
part of your investment. Please also read carefully the section below entitled “Special Note Regarding Forward-Looking Statements.”
Risks
Related to this Offering
Our
management team may invest or spend the proceeds of this offering in ways with which you may not agree or in ways which may not yield
a significant return.
Our
management will have broad discretion over the use of proceeds from this offering. We currently intend to use the net proceeds from this
offering for general corporate purposes, which may include, among other things, working capital and/or capital expenditure. For more
information, see “Use of Proceeds” on page 6 of this prospectus. However, our management will have broad discretion in the
application of the net proceeds from this offering and could spend the proceeds in ways that do not improve our results of operations
or enhance the value of our common stock. You will not have the opportunity, as part of your investment decision, to assess whether these
proceeds are being used appropriately.
The
amount and timing of our actual expenditures will depend upon numerous factors, including the amount of cash generated by our operations,
the level of competition, a change in business plan or strategy, our ability to select and negotiate definitive agreements and integration
with acquisition candidates, the need or desire on our part to accelerate, increase or eliminate existing initiatives due to, among other
things, changing market conditions and competitive developments, the availability of other sources of cash including cash flow from operations
and new bank debt financing arrangements, if any, and other operational factors, all of which are highly uncertain, subject to substantial
risks and can often change. Depending on these factors and other unforeseen events, our plans and priorities may change, and we may apply
the net proceeds of this offering in different proportions than we currently anticipate.
Our
failure to apply these funds effectively could have a material adverse effect on our business and cause the price of our common stock
to decline.
The
failure by management to apply these funds effectively could result in financial losses that could have a material adverse effect on
our business and cause the price of our common stock to decline.
Resales
of our common stock in the public market during this offering by our stockholders may cause the market price of our common stock to fall.
We
may issue shares of common stock from time to time in connection with this offering. The issuance from time to time of these new shares
of common stock, or our ability to issue new shares of common stock in this offering, could result in resales of our shares of common
stock by our current stockholders concerned about the potential dilution of their holdings. In turn, these resales could have the effect
of depressing the market price for our common stock.
Purchasers
in this offering will likely experience immediate and substantial dilution in the book value of their investment.
The
shares of common stock sold in this offering, if any, will be sold from time to time at various prices. However, the assumed offering
price per share of common stock may be substantially higher than the net tangible book value per share of common stock. Therefore, if
you purchase shares of our common stock in this offering, your interest will be diluted to the extent of the difference between the price
per share you pay and the as adjusted net tangible book value per share of common stock. Assuming the sale of an aggregate amount of
$5,500,000 of shares of our common stock in this offering at an assumed offering price of $5.725 per share, which was the last reported
sale price of our common stock on the Nasdaq Capital Market on May 13, 2024, and based on our net tangible book value as of March 31,
2024, if you purchase shares of common stock in this offering you will suffer substantial and immediate dilution of $4.525 per share
in the as adjusted net tangible book value of the share of common stock. The future exercise of outstanding options or warrants and other
instruments that are convertible or exercisable into common stock, if any, will result in further dilution of your investment. See the
section entitled “Dilution” below for a more detailed discussion of the dilution you will incur if you purchase shares of
our common stock in this offering.
Sales
of a substantial number of shares of our common stock, or the perception that such sales may occur, may adversely impact the price of
our common stock.
Sales
of a substantial number of shares of our common stock in the public markets could depress the market price of our common stock and impair
our ability to raise capital through the sale of additional equity securities. We cannot predict the effect that future sales of our
common stock would have on the market price of our common stock.
The
common stock offered hereby will be sold in “at-the-market” offerings, and investors who buy shares at different times will
likely pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and so may experience different outcomes in
their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold,
and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share
sales made at prices lower than the prices they paid.
The
actual number of shares we will issue under the sales agreement, at any one time or in total, is uncertain.
Subject
to certain limitations in the sales agreement and compliance with applicable law, we have the discretion to deliver sales notices to
the Designated Agent at any time throughout the term of the sales agreement. The number of shares that are sold by the Designated Agent
after delivering a sales notice will fluctuate based on the market price of the common stock during the sales period and limits we set
with the Designated Agent. Because the price per share of each share sold will fluctuate based on the market price of our common stock
during the sales period, it is not possible at this stage to predict the number of shares that will be ultimately issued.
You
may experience future dilution as a result of future equity offerings.
To
raise additional capital, we may in the future offer additional shares of common stock or other securities convertible into or exchangeable
for our common stock at prices that may not be the same as the price per share in this offering. We may sell common stock or other securities
in any other offering at a price per share that is less than the price per share paid by investors in this offering, and investors purchasing
shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional
shares of common stock, or securities convertible or exchangeable into common stock, in future transactions may be higher or lower than
the price per share paid by investors in this offering.
We
do not anticipate paying cash dividends, and accordingly, stockholders must rely on share appreciation for any return on their investment.
We
have never paid any dividends on our shares of common stock. We currently intend to retain our future earnings, if any, to fund the development
and growth of our businesses and do not anticipate that we will declare or pay any cash dividends on our shares of common stock in the
foreseeable future.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, the accompanying base prospectus, each prospectus supplement and the information incorporated by reference in this
prospectus, the accompanying base prospectus and each prospectus supplement contain forward-looking statements and forward-looking
information within the meaning of Canadian securities laws and the Private Securities Litigation Reform Act of 1995, collectively referred
to as “forward-looking statements”. Forward-looking statements include statements that relate to our plans, objectives, goals,
strategies, future events, future revenue or performance, capital expenditures, financing needs and other information that is not historical
information. Forward-looking statements can often be identified by the use of terminology such as “subject to”, “believe”,
“anticipate”, “plan”, “target”, “expect”, “intend”, “estimate”,
“project”, “outlook”, “may”, “will”, “should”, “would”, “could”,
“can”, the negatives thereof, variations thereon and similar expressions, or by discussions of strategy. In addition, any
statements that refer to expectations, beliefs, plans, projections, objectives, performance or other characterizations of future events
or circumstances, including any underlying assumptions, are forward-looking. In particular, forward-looking statements include, but are
not limited to, statements about:
|
● |
anticipated
tonnages and grades of the mineral resources disclosed for the Whistler Project; |
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●
|
our
expectations regarding the continuity of mineral deposits; |
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|
●
|
our
expectations regarding raising capital and developing the Whistler Project; |
|
|
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|
● |
our
planned exploration activities on the Whistler Project; |
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|
●
|
expectations
regarding environmental, social or political issues that may affect the exploration or development progress; |
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●
|
our
estimates regarding future revenue, expenses and needs for additional financing; and |
|
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|
●
|
our
ability to attract and retain qualified employees and key personnel. |
These
forward-looking statements are based on our opinions, estimates and assumptions in light of our experience and perception of historical
trends, current conditions and expected future developments, as well as other factors that we currently believe are appropriate and reasonable
in the circumstances, including that:
|
● |
the
timing and ability to obtain requisite operational, environmental and other licenses, permits and approvals, including extensions
thereof will occur and proceed as expected; |
|
|
|
|
● |
current
gold, silver, base metal and other commodity prices will be sustained, or will improve; |
|
|
|
|
● |
the
proposed development of the Whistler Project will be viable operationally and economically and will proceed as expected; |
|
|
|
|
● |
any
additional financing required by us will be available on reasonable terms or at all; and |
|
|
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|
● |
we
will not experience any material accident, labor dispute or failure of plant or equipment. |
Despite
a careful process to prepare and review the forward-looking statements, there can be no assurance that the underlying opinions, estimates
and assumptions will prove to be correct.
Forward-looking
statements are necessarily based on a number of opinions, estimates and assumptions that we considered appropriate and reasonable as
of the date such statements are made, are subject to known and unknown risks, uncertainties, assumptions and other factors that may cause
the actual results, level of activity, performance or achievements to be materially different from those expressed or implied by such
forward-looking statements, including but not limited to the risk factors described in greater detail under Item 1A. Risk Factors in
our Annual Report on Form 10-K filed with the SEC on February 21, 2024, as amended on Form 10-K/A filed with the SEC on April 24, 2024.
Should one or more of these risks and uncertainties materialize, or should underlying assumptions prove incorrect, actual results may
vary materially from those described in forward-looking statements.
These
factors should not be construed as exhaustive and should be read with other cautionary statements in this document. Although we have
attempted to identify important risk factors that could cause actual results to differ materially from those contained in forward-looking
statements, there may be other risk factors not presently known to us or that we presently believe are not material that could also cause
actual results or future events to differ materially from those expressed in such forward-looking statements. There can be no assurance
that such information will prove to be accurate, as actual results and future events could differ materially from those anticipated in
such information. Accordingly, readers should not place undue reliance on forward-looking statements, which speaks only as of the date
made. The forward-looking statements contained in this document represents our expectations as of the date of this prospectus (or as
the date they are otherwise stated to be made) and are subject to change after such date. However, we disclaim any intention or obligation
or undertaking to update or revise any forward-looking statements whether as a result of new information, future events or otherwise,
except as required under applicable securities laws.
USE OF PROCEEDS
We
may issue and sell shares of common stock having aggregate sales proceeds of up to $5,500,000 from time to time, before deducting sales
agent commissions and expenses. The amount of proceeds from this offering will depend upon the number of shares of our common stock sold
and the market price at which they are sold. There is no minimum offering amount required as a condition of this offering. There can
be no assurance that we will be able to sell any shares under or fully utilize the sales agreement with the Sales Agents.
We
currently intend to use the net proceeds from the sale of the shares offered by us pursuant to this prospectus for general corporate
purposes, which may include, among other things, working capital and/or capital expenditure. Among other potential uses, we may use the
net proceeds from the sale of the shares offered by us pursuant to this prospectus to (i) fund exploration and development activities,
including, but not limited to, planned exploration work at the Whistler Project, (ii) undertake community consultation, permitting/reporting
and environmental baseline and heritage studies and (iii) identify future acquisition opportunities as they may arise and as may be determined
by us.
Investors
are cautioned, however, that expenditures may vary substantially from these uses. Investors will be relying on the judgment of our management,
who will have broad discretion regarding the application of the proceeds of this offering. The amounts and timing of our actual expenditures
will depend upon numerous factors, including the amount of cash generated by our operations, the amount of competition and other operational
factors. We may find it necessary or advisable to use portions of the proceeds from this offering for other purposes.
From
time to time, we evaluate these and other factors and we anticipate continuing to make such evaluations to determine if the existing
allocation of resources, including the proceeds of this offering, is being optimized. Circumstances that may give rise to a change in
the use of proceeds include:
|
● |
a
change in business plan or strategy; |
|
|
|
|
● |
our
ability to select and negotiate definitive agreements with acquisition candidates; |
|
|
|
|
● |
the
need or desire on our part to accelerate, increase or eliminate existing exploration initiatives due to, among other things, changing
market conditions and competitive developments; and |
|
|
|
|
● |
the
availability of other sources of cash including cash flow from operations and new bank debt financing arrangements, if any. |
Pending
other uses, we intend to invest the proceeds to us in investment-grade, interest-bearing securities such as money market funds, certificates
of deposit, or direct or guaranteed obligations of the U.S. government, or hold as cash. We cannot predict whether the proceeds invested
will yield a favorable, or any, return.
Dilution
If
you invest in our common stock, your interest will be diluted to the extent of the difference between the price per share you pay in
this offering and the as adjusted net tangible book value per share of common stock immediately after this offering. The net tangible
book value of our common stock as of March 31, 2024, was approximately $10.97 million, or approximately $0.88 per share of common stock
based on 12,398,709 shares of common stock outstanding at that time. “Net tangible book value” is total assets minus the
sum of liabilities and intangible assets. “Net tangible book value per share” is net tangible book value divided by the total
number of shares outstanding.
After
giving effect to the sale of our common stock in the aggregate amount of $5,500,000 in this offering at an assumed offering price of
$5.725 per share, the last reported sale price of our common stock on the Nasdaq Capital Market on May 13, 2024, and after deducting
the commissions and estimated offering expenses payable by us, our as adjusted net tangible book value as of March 31, 2024, would have
been approximately $16.10 million, or approximately $1.20 per share of our common stock. This represents an immediate increase in net
tangible book value of $0.32 per share to our existing stockholders and an immediate dilution of approximately $4.525 per share to new
investors participating in this offering, as illustrated by the following table:
Assumed
offering price per share of common stock | |
| | | |
$ | 5.725 | |
| |
| | | |
| | |
Net tangible book
value per share of common stock as of March 31, 2024 | |
$ | 0.88 | | |
| | |
| |
| | | |
| | |
Increase
in net tangible book value per share of common stock attributable to this offering | |
$ | 0.32 | | |
| | |
| |
| | | |
| | |
As
adjusted net tangible book value per share of common stock as of March 31, 2024, after giving effect to this offering | |
| | | |
$ | 1.20 | |
| |
| | | |
| | |
Dilution
in net tangible book value per share of common stock to new investors in the offering | |
| | | |
$ | 4.525 | |
The
as adjusted information is illustrative only and will adjust based on the actual price to the public, the actual number of shares sold
and other terms of the offering determined at the time common stock is sold pursuant to this prospectus. The as adjusted information
assumes that all of our common stock in the aggregate amount of $5,500,000 is sold at the assumed offering price of $5.725 per share,
the last reported sale price of our common stock on the Nasdaq Capital Market on May 13, 2024. The shares sold in this offering, if any,
will be sold from time to time at various prices.
A
$1.00 increase or decrease in the assumed offering price of $5.725 per share, based on the last reported sale price of our common stock
on the Nasdaq Capital Market on May 13, 2024, would increase or decrease the as adjusted net tangible book value per share after this
offering by $0.02 or $0.01 per share, respectively, and would increase or decrease the dilution per share to investors participating
in this offering by $0.98 or $0.99 per share, respectively, assuming that all of our common stock in the aggregate amount of $5,500,000
is sold and after deducting sales agent fees and estimated offering expenses payable by us.
The
discussion and table above are based on 12,398,709 shares of common stock outstanding as of March 31, 2024, and excludes the following
securities as of that date:
|
● |
181,550
shares of common stock issuable upon the exercise of stock options under our equity incentive plans, with a weighted average exercise
price of $10.00 per share; |
|
|
|
|
● |
1,741,292
shares of common stock issuable upon the exercise of warrants outstanding at a weighted average exercise price of $13.00 per share;
and |
|
|
|
|
● |
1,058,320
shares of common stock available for future grants under our equity incentive plans. |
To
the extent that any of these options or awards are exercised, new options and awards are issued under our equity incentive plans and
subsequently exercised or we issue additional shares of common stock or securities convertible into shares of common stock in the future,
there may be further dilution to new investors participating in this offering.
DIVIDENDS
We
have not declared or paid any cash or other dividends on our capital stock, and we do not expect to declare or pay any cash or other
dividends in the foreseeable future. We expect to retain our future earnings, if any, for use in the operation and expansion of our business.
Subject to the foregoing, the payment of cash dividends in the future, if any, will be at the discretion of our board of directors and
will depend upon such factors as earnings levels, contractual restrictions, capital requirements, our overall financial condition and
any other factors deemed relevant by our board of directors.
PLAN
OF DISTRIBUTION
We
have entered into a sales agreement with the Lead Agent and the co-agents party thereto, under which we may issue and sell
from time to time shares of our common stock, subject to certain limitations, through the Designated Agent as our sales agent. Pursuant
to this prospectus and the accompanying base prospectus, we may offer and sell shares of our common stock having an aggregate offering
price of up to $5,500,000. Sales of the common stock, if any, will be made by any method permitted by law deemed to be an “at-the-market
offering” as defined in Rule 415 promulgated under the Securities Act, including, without limitation, sales made directly on or
through the Nasdaq Capital Market, the trading market for our common stock, or any other existing trading market in the United States
for our common stock, sales made to or through a market maker other than on an exchange or otherwise, directly to the sales agent as
principal, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market
prices and/or in any other method permitted by law.
The
Designated Agent will offer our common stock at prevailing market prices subject to the terms and conditions of the sales agreement as
agreed upon by us and the Designated Agent. We will designate the number of shares which we desire to sell, the time period during which
sales are requested to be made, any limitation on the number of shares that may be sold in one day and any minimum price below which
sales may not be made. Subject to the terms and conditions of the sales agreement, the Designated Agent will use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable law and regulations to sell on our behalf all of the shares
of common stock requested to be sold by us. We or the Designated Agent may suspend the offering of the common stock being made through
the Designated Agent under the sales agreement upon proper notice to the other party. None of our shares of common stock will be offered
or sold in Canada under this prospectus and the accompanying prospectus.
Settlement
for sales of shares of common stock will occur on the second trading day following the date on which any sales are made until
May 28, 2024, and on and after May 28, 2024, on the first trading day following the date on which any sales are made (or any
such other settlement cycle as may be in effect under Exchange Act Rule 15c6-1 from time to time), or on such other
date that is agreed upon by us and the Designated Agent, in return for payment of the net proceeds to us. Sales of our common stock as
contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and
the Designated Agent may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We
will pay the Designated Agent, upon each sale of our shares of common stock pursuant to the sales agreement, a cash commission equal
to 2.5% of the gross sales price of the shares sold through it. Because there is no minimum offering amount required as a condition to
this offering, the actual total offering amount, sales commissions and proceeds to us, if any, are not determinable at this time. Pursuant
to the terms of the sales agreement, we agreed to reimburse the Lead Agent for the reasonable fees and expenses of its legal counsel
incurred in connection with entering into the transactions contemplated by the sales agreement up to $75,000. Additionally, pursuant
to the terms of the sales agreement, we agreed to reimburse the Lead Agent up to $5,000 per due diligence update session. We estimate
that the total expenses of the offering payable by us, excluding commissions and other fees payable to the Lead Agent under the sales
agreement, will be approximately $140,000 assuming we sell the entire amount offered pursuant to this prospectus. We will disclose in
our Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as applicable, the number of shares of our common stock sold through
the Designated Agent under the sales agreement, the net proceeds to us and the compensation paid by us to the Designated Agent with respect
to sales under the sales agreement during the relevant quarter.
In
connection with the sales of common stock on our behalf, each Sales Agent will be deemed to be an “underwriter” within
the meaning of the Securities Act, and the compensation paid to each Sales Agent will be deemed to be underwriting commissions
or discounts. We have agreed in the sales agreement to provide indemnification and contribution to the Sales Agents against certain liabilities,
including liabilities under the Securities Act.
The
offering of our shares of common stock pursuant to this prospectus will terminate upon the earlier of (i) the sale of all of our shares
of common stock provided for in this prospectus or (ii) termination of the sales agreement as permitted therein.
To
the extent required by Regulation M, the Sales Agents will not engage in any market making activities involving our shares of common
stock while the offering is ongoing under this prospectus.
From
time to time, each Sales Agent and its affiliates have and may provide in the future various advisory, investment and commercial banking
and other services to us and our affiliates in the ordinary course of business, for which they have received and may continue to receive
customary fees and commissions.
This
prospectus in electronic format may be made available on a website maintained by each Sales Agent and a Sales Agent may distribute this
prospectus electronically.
Offer
Restrictions – Canada
This
prospectus is not and under no circumstances is to be construed as a prospectus, advertisement or a public offering of the common stock
under Canadian securities laws. The securities being registered hereunder have not been and will not be qualified by a prospectus for
the offer or sale to the public in Canada under applicable Canadian securities laws. No securities commission or similar regulatory authority
in Canada has reviewed this prospectus or in any way passed upon the merits of the securities being registered hereunder and any representation
to the contrary is an offence.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon by Haynes and Boone, LLP, New York, New York. Ellenoff Grossman
& Schole LLP, New York, New York, is counsel for the Lead Agent in connection with this offering.
EXPERTS
The
financial statements of U.S. Goldmining Inc. as of November 30, 2023 and 2022, and for each of the two years in the period ended November
30, 2023, incorporated by reference in this prospectus, have been audited by Deloitte LLP, an independent registered public accounting
firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm given
their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the informational requirements of the Exchange Act and in accordance therewith file annual, quarterly and current reports,
proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements
and other information regarding registrants that file electronically with the SEC. The address of the SEC’s website is www.sec.gov.
We
make available free of charge on or through our website at www.usgoldmining.us, our Annual Reports on Form 10-K and Quarterly Reports
on Form 10-Q and amendments to those reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable
after we electronically file such material with the SEC.
We
have filed with the SEC a registration statement under the Securities Act relating to the offering of these securities. The registration
statement, including the attached exhibits, contains additional relevant information about us and the securities. This prospectus does
not contain all of the information set forth in the registration statement. You can obtain a copy of the registration statement for free
at www.sec.gov.
We
have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of
this prospectus.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to “incorporate by reference” the information we have filed with it, which means that we can disclose important
information to you by referring you to those documents. The information we incorporate by reference is an important part of this prospectus,
and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference
the documents listed below and any future documents (excluding information furnished pursuant to Items 2.02 and 7.01 of Form 8-K) we
file with the SEC pursuant to Sections l3(a), l3(c), 14 or l5(d) of the Exchange Act subsequent to the date of this prospectus and prior
to the termination of the offering:
|
● |
Our
Annual Report on Form 10-K for the fiscal year ended November 30, 2023, filed with the Securities and Exchange Commission on February 21, 2024, as
amended on Form 10-K/A filed with the SEC on April 24, 2024; |
|
|
|
|
● |
Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the Securities and Exchange Commission on May 10, 2024; |
|
|
|
|
● |
Our
Current Reports on Form 8-K filed with the Securities and Exchange Commission on February 13, 2024, and March 19, 2024; and |
|
|
|
|
● |
The
description of our common stock contained in our Registration Statement on Form
8-A, filed on April 19, 2023, pursuant to Section 12(b) of the Exchange Act, which incorporates by reference the description
of the shares of our common stock contained in the “Description of Securities” filed as Exhibit 4.4 to our Annual Report
on Form 10-K/A for the year ended November 30, 2023, filed with the SEC on April 24, 2024, and any amendment or report filed with the
Securities and Exchange Commission for purposes of updating such description. |
All
filings filed by us pursuant to the Exchange Act after the date of the initial filing of this registration statement and prior to the
effectiveness of such registration statement (excluding information furnished pursuant to Items 2.02 and 7.01 of Form 8-K) shall also
be deemed to be incorporated by reference into the prospectus.
You
should rely only on the information incorporated by reference or provided in this prospectus. We have not authorized anyone else to provide
you with different information. Any statement contained in a document incorporated by reference into this prospectus will be deemed to
be modified or superseded for the purposes of this prospectus to the extent that a later statement contained in this prospectus or in
any other document incorporated by reference into this prospectus modifies or supersedes the earlier statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. You should not assume
that the information in this prospectus is accurate as of any date other than the date of this prospectus or the date of the documents
incorporated by reference in this prospectus.
We
will provide without charge to each person to whom a copy of this prospectus is delivered, upon written or oral request, a copy of any
or all of the reports or documents that have been incorporated by reference in this prospectus but not delivered with this prospectus
(other than an exhibit to these filings, unless we have specifically incorporated that exhibit by reference in this prospectus). Any
such request should be addressed to us at: 1188 West Georgia Street, Suite 1830, Vancouver, BC, Canada V6E 4A2, Attention: Tyler Wong,
Interim Chief Financial Officer, or made by phone at (604) 388-9788. You may also access the documents incorporated by reference in this
prospectus through our website at www.usgoldmining.us. Except for the specific incorporated documents listed above, no information available
on or through our website shall be deemed to be incorporated in this prospectus or the registration statement of which it forms a part.
$5,500,000
COMMON
STOCK
PROSPECTUS
Lead
Agent
H.C.
Wainwright & Co.
Co-Agents
Laurentian
Bank Securities |
|
Roth
Capital Partners |
The
date of this prospectus is , 2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. |
Other
Expenses of Issuance and Distribution. |
The
fees and expenses payable by us in connection with this registration statement are estimated as follows:
SEC
Registration Fee | |
$ | 5,904 | |
FINRA
Fee | |
| 6,500 | |
Accounting
Fees and Expenses | |
| 30,000 | |
Legal
Fees and Expenses | |
| 45,000 | |
Printing
Fees and Expenses | |
| 5,000 | |
Transfer
Agent Fees and Expenses | |
| 4,000 | |
Total | |
$ | 96,404 | |
All
of the above expenses are estimates, except for the SEC registration fee and FINRA fee.
Item
15. |
Indemnification
of Directors and Officers. |
The
Registrant is a Nevada corporation.
Section
78.7502 of the Nevada Revised Statutes provides that a Nevada corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed proceeding, except an action by or in the right of the corporation, by reason
of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another corporation or other enterprise, against expenses, including
attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with the proceeding, if such person: (i) is not liable for breach of his or her fiduciary duties to the corporation; or (ii) acted in
good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
In
addition, a Nevada corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation or other enterprise against expenses, including amounts paid in settlement
and attorneys’ fees actually and reasonably incurred by such person in connection with the defense or settlement of the action,
if he or she: (i) is not liable for breach of his or her fiduciary duties to the corporation; or (ii) acted in good faith and in a manner
which he or she reasonably believed to be in or not opposed to the best interests of the corporation.
Under
Nevada law, indemnification may not be made for any claim as to which such a person has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless
and only to the extent that a court of competent jurisdiction determines that in view of all the circumstances of the case, the person
is fairly and reasonably titled to indemnity for such expenses as the court deems proper.
To
the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of
any non-derivative proceeding or any derivative proceeding, or in defense of any claim, issue or matter therein, the corporation shall
indemnify such person against expenses, including attorneys’ fees, actually and reasonably incurred in connection with the defense.
Further,
Nevada law permits a Nevada corporation to purchase and maintain insurance or to make other financial arrangements on behalf of any person
who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other enterprise for any liability asserted against him or her and liability
and expenses incurred by him or her in his or her capacity as a director, officer, employee or agent, or arising out of his or her status
as such, whether or not the corporation has the authority to indemnify such person against such liability and expenses.
Under
the Registrant’s Bylaws, the Registrant is obligated to indemnify any director, officer, employee or agent of the Registrant to
the fullest extent permitted by the Nevada Revised Statutes, as described above. The Registrant’s Bylaws also require the Registrant
to advance expenses, including attorneys’ fees, incurred by a director or officer in defending any civil, criminal, administrative,
or investigative proceeding in advance of the final disposition of such proceeding upon receipt of a written request therefor (together
with documentation reasonably evidencing such expenses) and an undertaking by or on behalf of the person to repay all amounts advanced
if it is ultimately determined that the person is not titled to be indemnified by the Registrant.
The
Registrant has also entered into indemnification agreements with each of its current directors and officers. The indemnification agreements
generally require that the Registrant indemnify and hold the indemnitees harmless to the greatest extent permitted by law for liabilities
arising out of the indemnitees’ service to it as directors and officers, if the indemnitees acted honestly and in good faith with
a view to the best interests of the Registrant and, with respect to criminal and administrative actions or other non-civil proceedings
that are enforced by monetary penalty, if the indemnitee had reasonable grounds to believe that his or her conduct was lawful. The indemnification
agreements also provide for the advancing of defense expenses to the indemnitees by the Registrant.
Exhibit
No. |
|
Description |
1.1* |
|
Form
of Underwriting Agreement |
|
|
|
1.2** |
|
At
The Market Offering Agreement, dated May 15, 2024, by and between U.S. GoldMining Inc. and H.C. Wainwright & Co., LLC as representative
of the several agents party thereto |
|
|
|
4.1 |
|
Specimen common stock certificate. Filed as Exhibit 4.1 to the Company’s Registration Statement on Form S-1, as amended (File No. 333-269693), originally filed with the SEC on February 10, 2023, and incorporated by reference herein. |
|
|
|
4.2* |
|
Certificate
of Designation of Preferred Stock |
|
|
|
4.3* |
|
Form
of Warrant Agreement and Warrant Certificate |
|
|
|
4.4* |
|
Form
of Unit Agreement |
|
|
|
5.1** |
|
Opinion
of Haynes and Boone, LLP |
|
|
|
23.1** |
|
Consent
of Deloitte LLP, Independent Registered Public Accounting Firm |
|
|
|
23.2** |
|
Consent
of Haynes and Boone, LLP (included in Exhibit 5.1) |
|
|
|
24.1** |
|
Power
of Attorney (included in the signature page) |
|
|
|
107** |
|
Filing
Fee Table |
*
To be filed as an exhibit to a Current Report of the registrant on Form 8-K or other document to be incorporated herein by reference.
**
Filed herewith.
The
undersigned registrant hereby undertakes:
|
(a)(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
(i) |
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
|
|
|
|
(ii) |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price
set forth in the “Calculation of Filing Fee Tables” table in the effective registration statement; |
|
|
|
|
(iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
provided,
however, that the undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission
by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
|
(2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. |
|
|
|
|
(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
|
|
|
|
(4) |
That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
|
(i) |
If
the registrant is relying on Rule 430B (§230.430B of this chapter): |
|
(A) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and |
|
|
|
|
(B) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such effective date. |
|
(ii) |
If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such date of first use. |
|
(5) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser: |
|
(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
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(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
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(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
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(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
(d)
The undersigned registrant hereby undertakes that:
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(1) |
For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective. |
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(2) |
For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Vancouver, State of British Columbia, on May 15, 2024.
|
U.S.
GOLDMINING INC. |
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By: |
/s/
Tim Smith |
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Name: |
Tim
Smith |
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Title: |
Chief
Executive Officer and President |
POWER
OF ATTORNEY
Each
person whose signature appears below hereby appoints each of Tim Smith and Tyler Wong, severally, acting alone and without the other,
his or her true and lawful attorney-in-fact, with full power of substitution, and with the authority to execute in the name of each such
person, any and all amendments (including without limitation, post-effective amendments) to this registration statement on Form S-3,
to sign any and all additional registration statements relating to the same offering of securities as this registration statement that
are filed pursuant to Rule 462(b) of the Securities Act of 1933, and to file such registration statements with the Securities and Exchange
Commission, together with any exhibits thereto and other documents therewith, necessary or advisable to enable the registrant to comply
with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof,
which amendments may make such other changes in the registration statement as the aforesaid attorney-in-fact executing the same deems
appropriate.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
|
Title |
|
Date |
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/s/
Tim Smith |
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Chief
Executive Officer and President |
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May
15, 2024 |
Tim
Smith |
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(Principal
Executive Officer) |
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/s/
Tyler Wong |
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Interim
Chief Financial Officer |
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May
15, 2024 |
Tyler
Wong |
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(Principal
Financial Officer and Principal Accounting Officer) |
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/s/
Alastair Still |
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Chairman
of the Board |
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May
15, 2024 |
Alastair
Still |
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/s/
Garnet Dawson |
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Director |
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May
15, 2024 |
Garnet
Dawson |
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/s/
Ross Sherlock |
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Director |
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May
15, 2024 |
Ross
Sherlock |
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/s/
Lisa Wade |
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Director |
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May
15, 2024 |
Lisa
Wade |
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/s/
Laurie J. Schmidt |
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Director
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May
15, 2024 |
Laurie
J. Schmidt |
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/s/
Aleksandra Bukacheva |
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Director |
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May
15, 2024 |
Aleksandra
Bukacheva |
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|
Exhibit
1.2
AT
THE MARKET OFFERING AGREEMENT
H.C.
Wainwright & Co., LLC
As
Representative of the several Agents (as defined below)
430
Park Avenue
New
York, New York 10022
Ladies
and Gentlemen:
U.S.
GoldMining Inc., a company incorporated under the laws of Nevada (the “Company”), confirms its agreement (this “Agreement”)
with H.C. Wainwright & Co., LLC as lead agent and representative of the Agents (“Wainwright” or the “Representative”)
and certain other agents which deliver a Joinder in the form of Exhibit I hereto (a “Joinder”) and become a
party to this Agreement (such other agents which deliver a Joinder, individually, a “Co-Agent” and, collectively,
the “Co-Agents”, and collectively with the Representative, the “Agents”), for which Wainwright
is acting as representative of the Agents, as follows:
1.
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants”
shall have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base
Prospectus” shall mean the base prospectus contained in the Registration Statement at the Effective Time.
“Board”
means the board of directors of the Company.
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, that, for clarification, commercial banks shall not be deemed to
be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York
generally are open for use by customers on such day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common
Stock” shall have the meaning ascribed to such term in Section 2.
“Common
Stock Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Designated
Agent” shall have the meaning ascribed to such term in Section 2(b)(i).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
“Effective
Time” shall mean the first date and time that the Registration Statement becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or prior to the Effective Date that are
incorporated by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission
after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(w).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Liens”
shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other similar restriction.
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Net
Proceeds” shall have the meaning ascribed to such term in Section 2(b)(v).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the Prospectus Supplement included in the Registration Statement at the Effective
Time and any subsequently filed Prospectus Supplement.
“Prospectus
Supplement” shall mean the prospectus supplement relating to the Shares included in the Registration Statement at the Effective
Time and any other prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from time to time.
“Registration
Statement” shall mean the shelf registration statement on Form S-3 registering $40,000,000 of securities of the Company to
be filed on or about the Execution Time, including exhibits and financial statements and any prospectus supplement relating to the Shares
that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended
on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also mean such registration statement
as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule
158”, “Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” refer
to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC
Reports” shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time
of Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York
Stock Exchange (or any successors to any of the foregoing).
2.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Agents, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, up to the lesser of such number of shares (the
“Shares”) of the Company’s common stock, $0.001 par value per share (“Common Stock”), that
does not exceed (a) the number or dollar amount of shares of Common Stock registered on the Prospectus Supplement, pursuant to which
the offering is being made, (b) the number of authorized but unissued shares of Common Stock (less the number of shares of Common Stock
issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s
authorized capital stock), or (c) the number or dollar amount of shares of Common Stock that would cause the Company or the offering
of the Shares to not satisfy the eligibility and transaction requirements for use of Form S-3, including, if applicable, General Instruction
I.B.6 of Registration Statement on Form S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 2
on the number and aggregate sales price of Shares issued and sold under this Agreement shall be the sole responsibility of the Company
and that the Agents shall have no obligation in connection with such compliance.
(a)
Appointment of Agents as Selling Agents; Terms Agreement. For purposes of selling the Shares through the Agents, the Company hereby
appoints the Agents as exclusive agents of the Company for the purpose of selling the Shares of the Company pursuant to this Agreement
and each Agent, severally and not jointly with the other Agents, agrees to use its commercially reasonable efforts to sell the Shares
on the terms and subject to the conditions stated herein. In using commercially reasonable efforts to sell Shares, as sales agent for
the Company, each Agent will undertake such sales in a manner that is consistent with its respective normal trading and sales practices.
The Company agrees that the sales of Shares hereunder shall only be effected by or through one Agent on any single given Trading Day,
and the Company shall not deliver a Sales Notice (as defined below) to more than one Agent on any single given Trading Day. The Company
agrees that, whenever it determines to sell the Shares directly to an Agent as principal, the Company will enter into a separate agreement
(each, a “Terms Agreement”) in substantially the form of Annex I hereto, relating to such sale in accordance
with Section 2 of this Agreement.
(b)
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, following
the effectiveness of the Registration Statement, the Company will issue and agrees to sell Shares from time to time through an Agent,
acting as sales agent, and each Agent, severally and not jointly with the other Agents, agrees to use its commercially reasonable efforts
to sell, as sales agent for the Company, on the following terms:
(i)
The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and an Agent selected by the Company (such
Agent, the “Designated Agent”) on any day that (A) is a Trading Day, (B) the Company has instructed the Designated
Agent by telephone (confirmed promptly by electronic mail) to make such sales (“Sales Notice”), and (C) the Company
has satisfied its obligations under Section 6 of this Agreement. The Company will designate the maximum amount of the Shares to be sold
by the Designated Agent daily (subject to the limitations set forth in Section 2(d)) and at the minimum price per Share at which such
Shares may be sold. Subject to the terms and conditions hereof, the Designated Agent shall use its commercially reasonable efforts consistent
with its normal trading and sales practices to sell on a particular day all of the Shares designated for the sale by the Company on such
day. The gross sales price of the Shares sold under this Section 2(b) shall be the market price for the shares of Common Stock sold by
the Designated Agent under this Section 2(b) on the Trading Market at the time of sale of such Shares.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Designated Agent will be successful in selling the Shares,
(B) the Designated Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell the Shares
for any reason other than a failure by the Designated Agent to use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Designated Agent
shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed
by the Designated Agent and the Company pursuant to a Terms Agreement.
(iii)
The Company shall not authorize the issuance and sale of, and the Designated Agent shall not be obligated to use its commercially reasonable
efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Board, or a duly authorized
committee thereof, or such duly authorized officers of the Company, and notified to the Designated Agent in writing. The Company or the
Representative may, upon notice to the other parties to this Agreement by telephone (confirmed promptly by electronic mail), suspend
the offering of the Shares for any reason and at any time; provided, however, that such suspension or termination shall
not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such
notice.
(iv)
The Designated Agent may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in
Rule 415 under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market
for the Common Stock or to or through a market maker. The Designated Agent may also sell Shares in privately negotiated transactions,
provided that the Designated Agent receives the Company’s prior written approval for any sales in privately negotiated transactions
and if such privately negotiated transactions are provided in the “Plan of Distribution” section of the Prospectus Supplement
or a supplement to the Prospectus Supplement or a new Prospectus Supplement disclosing the terms of such privately negotiated transaction.
For the avoidance doubt, each of the Agents agrees, severally and not jointly with the other Agents, that (i) sales and solicitations
of sales of Shares by it shall be made solely on or through the facilities of an exchange or market outside Canada, and (ii) it will
not, to its knowledge, offer or sell Shares to a person that it knows or has reason to believe is residing in Canada or has been pre-arranged
with a purchaser resident in Canada, or to any person who it knows or has reason to believe is acting on behalf of purchasers resident
in Canada or to any person whom it knows or has reason to believe intends to reoffer, resell or deliver the Shares to any persons resident
in Canada or acting on behalf of persons resident in Canada.
(v)
The compensation to the Designated Agent for sales of the Shares under this Section 2(b) shall be a placement fee of 2.5% of the gross
sales price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall
not apply when the Designated Agent acts as principal, in which case the Company may sell Shares to the Designated Agent as principal
at a price agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the
Broker Fee and deduction of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization
in respect of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi)
The Designated Agent shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close
of trading on the Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares
sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company
to the Designated Agent with respect to such sales.
(vii)
Unless otherwise agreed between the Company and the Designated Agent, settlement for sales of the Shares will occur at 10:00 a.m. (New
York City time) on the second (2nd) Trading Day (and on and after May 28, 2024 (or such later date on which the Commission’s final
rule with respect to the shortening of the securities transaction settlement cycle becomes effective), on the first (1st) Trading Day,
or any such other settlement cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange Act from time to time) following the
date on which such sales are made (each, a “Settlement Date”). On or before the Trading Day prior to each Settlement
Date, the Company will, or will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Designated
Agent’s or its designee’s account (provided that the Designated 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 (“DTC”) through its
Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the Company and the Designated
Agent which Shares in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement
Date, the Designated Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company. The Company
agrees that, if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized Shares on a
Settlement Date, in addition to and in no way limiting the rights and obligations set forth in Section 7 hereto, the Company will (i)
hold the Designated Agent harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable and documented
legal fees and expenses), as incurred, arising out of or in connection with such default by the Company, and (ii) pay to the Designated
Agent any commission, discount or other compensation to which the Designated Agent would otherwise have been entitled absent such default.
(viii)
At each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation and
warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate
to the Registration Statement and the Prospectus, as amended, as of such date. Any obligation of the Designated Agent to use its commercially
reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and
warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of
the additional conditions specified in Section 6 of this Agreement.
(ix)
Notwithstanding any other provision of this Agreement, during any period in which the Company is in possession of material non-public
information, the Company and the Agents agree that (i) no sales of Shares will take place, (ii) the Company shall not request the sale
of any Shares, and (iii) the Agents shall not be obligated to sell or offer to sell any Shares.
(x)
If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of
shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other
similar transaction) (a “Distribution” and the record date for the determination of stockholders entitled to receive
the Distribution, the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant
to a Sales Notice on the Record Date, the Company shall issue and deliver such Shares to the Agent on the Record Date and the Record
Date shall be the Settlement Date and the Company shall cover any additional costs of the Agent in connection with the delivery of Shares
on the Record Date.
(c)
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in Section
2(b) of this Agreement (each, a “Placement”), the Company will notify the Designated Agent of the proposed terms of
such Placement. If the Designated Agent, acting as principal, wishes to accept such proposed terms (which it may decline to do for any
reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Company and the Designated
Agent will enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not
be binding on the Company or the Designated Agent unless and until the Company and the Designated Agent have each executed such Terms
Agreement accepting all of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the
terms of a Terms Agreement, the terms of such Terms Agreement will control. A Terms Agreement may also specify certain provisions relating
to the reoffering of such Shares by the Designated Agent. The commitment of the Designated Agent to purchase the Shares pursuant to any
Terms Agreement shall be deemed to have been made on the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be
purchased by the Designated Agent pursuant thereto, the price to be paid to the Company for such Shares, any provisions relating to rights
of, and default by, underwriters acting together with the Designated Agent in the reoffering of the Shares, and the time and date (each
such time and date being referred to herein as a “Time of Delivery”) and place of delivery of and payment for such
Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel, accountants’ letters and officers’
certificates pursuant to Section 6 of this Agreement and any other information or documents required by the Designated Agent.
(d)
Maximum Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after
giving effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A)
together with all sales of 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 Board,
a duly authorized committee thereof or a duly authorized executive committee. Under no circumstances shall the Company cause or request
the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the
Board, a duly authorized committee thereof or a duly authorized executive officer, and notified to the Designated Agent in writing. Further,
under no circumstances shall the Company cause or permit the aggregate offering amount of Shares sold pursuant to this Agreement to exceed
the Maximum Amount.
(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are satisfied
with respect to the Shares, the Company shall give the Designated Agent at least one (1) Business Day’s prior notice of its intent
to sell any Shares in order to allow the Designated Agent time to comply with Regulation M.
3.
Representations and Warranties. The Company represents and warrants to, and agrees with, each Agent at the Execution Time and
the Effective Time and on each such time that the following representations and warranties are repeated or deemed to be made pursuant
to this Agreement, as set forth below, except as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.
(a)
Subsidiaries. All of the direct and indirect subsidiaries (the “Subsidiaries”) of the Company are set forth
on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission. The Company owns, directly or
indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued
and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive
and similar rights to subscribe for or purchase securities.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor in default of any of the provisions of its respective certificate or articles of incorporation, bylaws
or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
could not reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement,
(ii) a material adverse change in the results of operations, assets, business, prospects or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus
Supplement, the Prospectus or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform
in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation
or proceeding (including, without limitation, a partial proceeding, such as a deposition), whether commenced or threatened) has been
instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.
(c)
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s stockholders in
connection herewith, other than in connection with the Required Approvals. This Agreement has been (or upon delivery will have been)
duly executed and delivered by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and
the consummation by the Company of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision
of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an event that, with notice or lapse of time or both, would become a default)
under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any
rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of
time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or
other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary
is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary
is subject (including U.S. federal, state or provincial securities laws and regulations), or by which any property or asset of the Company
or a Subsidiary is bound or affected, except in the case of each of clauses (ii) and (iii), such as could not reasonably be expected
to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other U.S. federal, state, provincial, local or other governmental authority
or other “Person” (which for purposes of this Agreement shall mean an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind, including the Trading Market) in connection with the execution, delivery and performance
by the Company of this Agreement, other than (i) the filings required by this Agreement, (ii) the filing of the Prospectus Supplement
with the Commission, (iii) the filing of application(s) or notice(s) to and approval by the Trading Market for the listing of the Shares
for trading thereon in the time and manner required thereby, and (iv) such filings as are required to be made under applicable U.S. federal,
state and provincial securities laws and the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”)
(collectively, the “Required Approvals”).
(f)
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its
duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement. On or after the Effective
Time, the issuance by the Company of the Shares has been registered under the Act and all of the Shares are freely transferable and tradable
by the purchasers thereof without restriction (other than any restrictions arising solely from an act or omission of such a purchaser).
On or after the Effective Time, the Shares are being issued pursuant to the Registration Statement and the issuance of the Shares has
been registered by the Company under the Act. The “Plan of Distribution” section within the Registration Statement
permits the issuance and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of such Shares
will have good and marketable title to such Shares and the Shares will be freely tradable on the Trading Market.
(g)
Capitalization. The capitalization of the Company is as set forth in the SEC Reports. The Company has not issued any capital stock
since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under
the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee
stock purchase plan, and pursuant to the conversion and/or exercise of securities exercisable, exchangeable or convertible into Common
Stock (“Common Stock Equivalents”) outstanding as of the date of the most recently filed periodic report under the
Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate
in the transactions contemplated by this Agreement. Except as set forth in the SEC Reports, there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or the capital stock of any Subsidiary. The
issuance and sale of the Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to
any Person. Except as set forth in the SEC Reports, there are no outstanding securities or instruments of the Company or any Subsidiary
with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of
securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the Company or any Subsidiary that
contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company
or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. Except as set forth in the SEC Reports,
the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
All of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued in compliance
with all U.S. federal, state and provincial securities laws, and none of such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board
or other Person is required for the issuance and sale of the Shares. There are no stockholders agreements, voting agreements or other
similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s stockholders.
(h)
Registration Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared and will file on
or immediately following the Execution Time with the Commission the Registration Statement, including a related Base Prospectus, for
registration under the Act of the offering and sale of the Shares. Upon the Effective Time, such Registration Statement shall be effective
and available for the offer and sale of the Shares as of the date hereof. As filed, the Base Prospectus contains all information required
by the Act and the rules thereunder and, except to the extent the Representative shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to the Representative prior to the Execution Time or prior to any such time that this
representation is repeated or deemed to be made. The Registration Statement, when filed on or immediately following the Execution Time,
each such time this representation is repeated or deemed to be made, and at all times during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172, 173 or any similar rule) in connection with any offer or sale
of the Shares, meets the requirements set forth in Rule 415(a)(1)(x). The Company meets the transaction requirements as set forth in
General Instruction I.B.1 of Form S-3 or, if applicable, as set forth in General Instruction I.B.6 of Form S-3 with respect to the aggregate
market value of securities being sold pursuant to this offering and during the twelve (12) months prior to such time that this representation
is repeated or deemed to be made.
(i)
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules thereunder, and none of the Incorporated Documents, when they were filed
with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated
by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules thereunder, as
applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(j)
Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each
such time that this representation is repeated or deemed to be made (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(k)
Free Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus
does not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and each
Issuer Free Writing Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. 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 Agents specifically for use therein. Any Issuer Free Writing Prospectus that the Company
is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements of the
Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule
433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements
of the Act and the rules thereunder. The Company will not, without the prior consent of the Representative, prepare, use or refer to,
any Issuer Free Writing Prospectuses.
(l)
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection
with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends to issue a stop-order
with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m)
SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively
referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing
and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements
of the Company included in the SEC Reports have been prepared in all material respects in compliance with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at the time of filing or as amended or corrected in
a subsequent filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
(n)
[RESERVED]
(o)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date on which this representation
is being made, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in
a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or required to be disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of
cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital
stock, and (v) except as set forth in the SEC Reports, the Company has not issued any equity securities to any officer, director or “Affiliate”
(which for purposes of this Agreement shall mean any Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 under the Act),
except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential
treatment of information. No event, liability or development has occurred or exists with respect to the Company or its Subsidiaries or
their respective businesses, properties, operations or financial condition that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is deemed made that has not been publicly disclosed at least one (1) Trading
Day prior to the date that this representation is deemed made.
(p)
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, Proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (U.S. federal, state, provincial, county,
local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or
enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable decision, reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor to the knowledge of the Company, any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under U.S. federal, state or provincial securities
laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Act.
(q)
Labor Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the
employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its
Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary,
and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries
believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant, and the continued
employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any
of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state, provincial, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(r)
Compliance. Neither the Company nor any Subsidiary (i) is in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor
has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any order of any court, arbitrator or governmental
body or (iii) is or has been in violation of any statute, law, regulation, rule, ordinance or regulation of any governmental authority,
including without limitation all foreign, U.S. federal, state, provincial and local laws relating to taxes, environmental protection,
occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not reasonably
be expected to result in a Material Adverse Effect.
(s)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all U.S. federal, state, provincial, Canadian,
local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of
chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”)
into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental
Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval
where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect.
(t)
Regulatory Permits. The Company and the Subsidiaries are the registered owners of, possess and are in compliance, and to the knowledge
of the Company, all prior times were in compliance with all licenses, sub-licenses, certificates, rights (including, without limitation,
surface rights, access rights and water rights), concessions, instruments, permits and other authorizations issued by the appropriate
U.S. federal, state, provincial, local or foreign regulatory authorities necessary for the ownership or lease of their properties or
the conduct of their respective businesses as described in the Registration Statement and the Prospectus, including for the exploration,
exploitation, extraction, removal, processing and refinery of minerals, except where the failure to possess such permits could not reasonably
be expected to result in a Material Adverse Effect (each, a “Material Permit”). The Material Permits are in good standing
without default, except where failure to be in good standing or the existence of a default would not result in a Material Adverse Effect;
neither the Company nor any Subsidiary has received any notice of any proceedings, including, but not limited, to orders, rights, directives,
units or judgments, that are pending, or that are known to be contemplated, against the Company or any of its Subsidiaries relating to
the revocation, cancellation or modification or the intention to revoke, cancel or modify any Material Permit except where such revocation,
cancellation or modification would not result in a Material Adverse Effect; and neither the Company nor any Subsidiary have any reason
to believe that any such Material Permit will not be renewed in the ordinary course, except where such revocation, cancellation or modification
would not result in a Material Adverse Effect.
(u)
Title to Assets and Properties. The Company and the Subsidiaries have good and marketable title to all the real property, personal
property and other assets, including all interests in mining claims, mining leases, concessions, exploitation or extraction rights, or
other property interests or rights or similar rights (“Mining Claims”) that are material to the respective businesses
of the Company and the Subsidiaries as currently conducted, and described in the Registration Statement and Prospectus as being owned
respectively by them, in each case free and clear of any Lien, except: (i) as subject to the paramount title of the United States in
respect of the unpatented mining claims owned by the Company or the Subsidiaries; (ii) Liens as do not materially affect the value of
such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries;
and (iii) Liens for the payment of U.S. federal, state, provincial or other taxes, for which appropriate reserves have been made therefor
in accordance with GAAP, and the payment of which is neither delinquent nor subject to penalties and except as set forth in the Registration
Statement (including the exhibits thereto) and Prospectus. All material Mining Claims in which the Company or any of the Subsidiaries
has an interest or right are valid, subsisting and enforceable. Except as otherwise disclosed in the Registration Statement and Prospectus,
there are no expropriations or similar proceedings or any challenges to title or ownership of which the Company or the Subsidiaries have
received notice against the Mining Claims or any part thereof and, to the knowledge of the Company, no such expropriations, proceedings
or challenges are contemplated. Neither the Company nor any of its subsidiaries has any obligation to pay any royalty that is material
to the Company and its subsidiaries as a whole in respect of any Mining Claims except as disclosed in the Registration Statement and
Prospectus. Except as disclosed in the Registration Statement and the Prospectus, there are no restrictions on the ability of the Company
and the Subsidiaries to use, transfer or otherwise exploit any such Mining Claims except as required by applicable law or security instruments,
except where such restrictions would not reasonably be expected to result in a Material Adverse Effect. The Company and Subsidiaries
have valid, subsisting and enforceable leases for the real property, improvements, equipment and personal property described in the Registration
Statement and Prospectus, as leased by them, with such exceptions as would not reasonably be expected to result in a Material Adverse
Effect and do not materially interfere with the use made or proposed to be made of such real property, improvements, equipment or personal
property by the Company or the Subsidiaries.
(v)
Mineral Resources and Mineral Reserves. Any information relating to estimates by the Company of the proven and probable mineral
reserves and the measured, indicated and inferred mineral resources associated with its mineral property projects contained in the Registration
Statement and the Prospectus has been prepared in all material respects in accordance with Regulation S-K 1300; the Company believes
that all of the assumptions underlying such reserve and resource estimates are reasonable and appropriate.
(w)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other similar intellectual property
rights necessary or material for use in connection with their respective businesses as described in the SEC Reports and which the failure
to so have could reasonably be expected to have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC
Reports, a written notice of a claim or otherwise that the Intellectual Property Rights violate or infringe upon the rights of any Person,
except as would not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable
and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries
have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights,
except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(x)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary for companies of similar size as the Company in the businesses in which the
Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage. To the knowledge
of the Company, such insurance contracts and policies are accurate and complete. Neither the Company nor any Subsidiary has any reason
to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business without a significant increase in cost.
(y)
Affiliate Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company and, to the knowledge
of the Company, none of the employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other
than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing
of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending
of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any
entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner,
in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement
for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock incentive
plan of the Company.
(z)
Sarbanes Oxley; Internal Accounting Controls. The Company is in material compliance with all applicable requirements of the Sarbanes-Oxley
Act of 2002, as amended, that are effective as of the date hereof. The Company and the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general
or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have
evaluated the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by the most
recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in
its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of
the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been
no changes in the Company’s internal control over financial reporting (as such term is defined in the Exchange Act) that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting of the Company.
(aa)
Certain Fees. Other than payments to be made to the Agents, no brokerage or finder’s fees or commissions are or will be
payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement. The Agents shall have no obligation with respect to any fees or with
respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection
with the transactions contemplated by this Agreement.
(bb)
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the Shares.
(cc)
Listing and Maintenance Requirements. The Common Stock is listed on the Trading Market and the issuance and sale of the Shares
as contemplated by this Agreement does not contravene the rules and regulations of the Trading Market. The Common Stock is registered
pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to terminate, or which to its knowledge
is likely to have the effect of terminating, the registration of the Common Stock under the Exchange Act nor has the Company received
any notification that the Commission is contemplating terminating such registration. The Company has not, in the 12 months preceding
the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that
the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Common Stock is currently eligible
for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in
payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic
transfer.
(dd)
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s articles of incorporation (or similar charter documents) or the laws of its state of
incorporation that is or could become applicable to purchasers of the Shares under this Agreement.
(ee)
Solvency. Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and
other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt) within
one year from the date hereof. The SEC Reports set forth as of the date therein all outstanding secured and unsecured Indebtedness of
the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. Neither the Company nor any Subsidiary is
in default with respect to any Indebtedness. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities
for borrowed money or amounts owed in excess of $100,000 (other than accrued liabilities and trade accounts payable incurred in the ordinary
course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether
or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z)
the present value of any lease payments in excess of $100,000 due under leases required to be capitalized in accordance with GAAP.
(ff)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all U.S. federal, state, provincial, foreign and
local income tax and franchise tax returns and have paid or accrued all taxes shown as due thereon, and the Company has no knowledge
of a tax deficiency which has been asserted or threatened against the Company or reports and declarations required by any jurisdiction
to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for
the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are
no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company
or of any Subsidiary know of no basis for any such claim.
(gg)
Foreign Corrupt Practices. Neither the Company, nor to the knowledge of the Company, any agent or other person acting on behalf
of the Company, has: (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses
related to foreign or domestic political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees
or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made
by the Company (or made by any person on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in
any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
(hh)
Accountants. The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company,
such accounting firm (i) is an independent registered public accounting firm as required by the Exchange Act and (ii) shall express its
opinion with respect to the financial statements to be included in the next Annual Report of the Company.
(ii)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of
the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of
the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Agents in connection with the Shares.
(jj)
Cybersecurity. (i)(x) Except as set forth in the SEC Reports, there has been no security breach or other compromise of or relating
to any of the Company’s information technology and computer systems, networks, hardware, software, data (including the data of
its respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology
(collectively, “IT Systems and Data”) and (y) the Company has not been notified of, and has no knowledge of any event
or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data, in each
case which would have a Material Adverse Effect; (ii) the Company is presently in compliance with all applicable laws or statutes and
all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data
from unauthorized use, access, misappropriation or modification, except as would not in the case of this clause, individually or in the
aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable
safeguards to maintain and protect its material confidential information; and (iv) the Company has implemented backup and disaster recovery
technology consistent with industry standards and practices.
(kk)
Investment Company. The Company is not, and no Affiliate is, and immediately after receipt of payment for the Shares will not
be, and no Affiliate will be, required to register as an “investment company” under the Investment Company Act of 1940, as
amended.
(ll)
No Conflicts with Sanctions Laws. Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or representative of the Company or its Subsidiaries is currently subject to any sanctions administered
or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Treasury Department
or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or
“blocked person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant
sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized
or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Cuba, Iran, North
Korea, the Crimean region and Syria (each, a “Sanctioned Country”).
(mm)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total
equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its
Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject
to the BHCA and to regulation by the Federal Reserve.
(nn)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of
all jurisdictions in which the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental or regulatory agency (collectively, the
“Anti-Money Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to
the knowledge of the Company, threatened.
(oo)
FINRA Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors
or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.
4.
Agreements. The Company agrees with each Agent that:
(a)
Right to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a
prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172,
173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file
any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectus unless the Company
has furnished to the Representative a copy for its review prior to filing and will not file any such proposed amendment or supplement
to which the Representative reasonably objects (provided, however, that the Company will have no obligation to provide the Representative
an advance copy of such filing or to provide the Representative an opportunity to object to such filing if the filing does not name the
Agents (other than the naming of the Agents in connection with disclosure of the offering hereunder in any annual report of the Company
filed pursuant to the Section 13(a) or 15(d) of the Exchange Act) and does not relate to the transactions under this Agreement). The
Company will cause any supplement to the Prospectus filed after the Effective Time to be properly completed, in a form approved by the
Representative, and will file such supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed thereby and will provide evidence reasonably satisfactory to the Representative of such timely filing. The Company
will promptly advise the Agents (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (ii) when, during any period when the delivery of a prospectus (whether physically or through compliance with
Rule 172, 173 or any similar rule) is required under the Act in connection with the offering or sale of the Shares, any amendment to
the Registration Statement shall have been filed or become effective (other than any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act), (iii) of any request by the Commission or its staff for any amendment of the Registration Statement,
or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration
Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order
or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b)
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs as
a result of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or the
circumstances then prevailing, not misleading, the Company will (i) notify promptly the Agents so that any use of the Registration Statement
or Prospectus may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to
correct such statement or omission; and (iii) supply any such amendment or supplement to the Agents in such quantities as the Agents
may reasonably request.
(c)
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act,
any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery
of the Prospectus, the Company promptly will (i) notify the Agents of any such event, (ii) subject to Section 4(a), prepare and file
with the Commission an amendment or supplement or new registration statement which will correct such statement or omission or effect
such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared
effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented Prospectus
to the Agents in such quantities as the Agents may reasonably request.
(d)
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the Agents
an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act
and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange Act shall be
deemed to satisfy the requirements of this Section 4(d).
(e)
Delivery of Registration Statement. Upon the request of the Representative, the Company will furnish to the Representative and
counsel for the Agents, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery
of a prospectus by the Agents or dealer may be required by the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172, 173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement
thereto as the Agents may reasonably request. The Company will pay the expenses of printing or other production of all documents relating
to the offering.
(f)
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the laws of
such jurisdictions as the Representative may designate and will maintain such qualifications in effect so long as required for the distribution
of the Shares, provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering
or sale of the Shares, in any jurisdiction where it is not now so subject.
(g)
Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the Representative,
and each Agent agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the
Company and the Representative, an Agent has not made and will not make any offer relating to the 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 by the Company with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented
to by the Representative and the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(h)
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered
shall not apply during such two (2) Trading Days) for at least two (2) Trading Days prior to any date on which the Company or any Subsidiary
offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other shares of Common
Stock or any Common Stock Equivalents (other than the Shares), subject to the Representative’s right to waive this obligation,
provided that, without compliance with the foregoing obligation, the Company may issue and sell Common Stock pursuant to any employee
equity plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, issuances of restricted
Common Stock to consultants as set forth in the SEC Reports, and the Company may issue Common Stock issuable upon the conversion or exercise
of Common Stock Equivalents outstanding at the Execution Time.
(i)
Market Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the Company
to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j)
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented from time
to time, advise the Agents immediately after the Company shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect any opinion, certificate, letter and other document provided to the Agents pursuant to Section 6 herein.
(k)
Certification of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement
of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than thirty
(30) Trading Days), and each time that (i) the Registration Statement or Prospectus shall be amended or supplemented, other than by means
of Incorporated Documents, (ii) the Company files its Annual Report on Form 10-K under the Exchange Act, (iii) the Company files its
quarterly reports on Form 10-Q under the Exchange Act, (iv) the Company files a Current Report on Form 8-K containing amended financial
information (other than information that is furnished and not filed), if the Representative reasonably determines that the information
in such Form 8-K is material, or (v) the Shares are delivered to the Designated Agent as principal at the Time of Delivery pursuant to
a Terms Agreement (such commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv) and (v) above, a
“Representation Date”), unless waived by the Representative, the Company shall furnish or cause to be furnished to
the Agents promptly a certificate dated and delivered on the Representation Date, in form and substance reasonably satisfactory to the
Representative to the effect that the statements contained in the certificate referred to in Section 6 of this Agreement which were last
furnished to the Agents are true and correct at the Representation Date, as though made at and as of such date (except that such statements
shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in said Section 6, modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the date of delivery of such certificate.
(l)
Bring Down Opinions; Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived by the Representative,
the Company shall furnish or cause to be furnished forthwith to the Representative and to counsel to the Agents a written opinion of
United States counsel to the Company (“Company Counsel”), including a negative assurance representation, addressed
to the Agents and dated and delivered within five (5) Trading Days of such Representation Date, in form and substance reasonably satisfactory
to the Representative. The requirement to furnish or cause to be furnished an opinion (but not with respect to a negative assurance representation)
under this Section 4(l) shall be waived for any Representation Date other than a Representation Date on which a material amendment to
the Registration Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a material amendment thereto
under the Exchange Act, unless the Representative reasonably requests such deliverable required by this Section 4(l) in connection with
a Representation Date, upon which request such deliverable shall be deliverable hereunder.
(m)
Auditor Bring Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived by the
Representative, the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent
accountants satisfactory to the Representative forthwith to furnish the Agents a “comfort” letter, and (2) the Chief Financial
Officer of the Company forthwith to furnish the Agents a certificate, in each case dated within five (5) Trading Days of such Representation
Date, in form and substance reasonably satisfactory to the Representative, of the same tenor as the letters and certificate referred
to in Section 6 of this Agreement but modified to relate to the Registration Statement and the Prospectus, as amended and supplemented
to the date of such letters and certificate. The requirement to furnish or cause to be furnished a “comfort” letter under
this Section 4(m) shall be waived for any Representation Date other than a Representation Date on which a material amendment to the Registration
Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a material amendment thereto under the Exchange
Act, unless the Representative reasonably requests the deliverable required by this Section 4(m) in connection with a Representation
Date, upon which request such deliverable shall be deliverable hereunder.
(n)
Due Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and, upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than thirty (30)
Trading Days), and at each Representation Date, the Company will conduct a due diligence session in form and substance reasonably satisfactory
to the Representative, which shall include representatives of management, Accountants, Company Counsel and Canadian counsel to the Company.
The Company shall cooperate timely with any reasonable due diligence request from or review conducted by the Representative or its agents
from time to time in connection with the transactions contemplated by this Agreement, including, without limitation, providing information
and available documents and access to appropriate corporate officers and the Company’s agents during regular business hours, and
timely furnishing or causing to be furnished such certificates, letters and opinions from the Company, its officers and its agents, as
the Representative may reasonably request. The Company shall reimburse the Representative for the fees for counsel to the Agents in each
such due diligence update session, up to a maximum of $5,000 per update, plus any incidental expense incurred by the Representative in
connection therewith.
(o)
Acknowledgment of Trading. The Company consents to the Agents trading in the Common Stock for each Agent’s own account and
for the account of such Agent’s clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to
a Terms Agreement.
(p)
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as
applicable, the number of Shares sold through the Agents under this Agreement, the Net Proceeds to the Company and the compensation paid
by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent
change in Commission policy or request, more frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.
(q)
Rescission Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied as of
the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result
of an offer to purchase solicited by the Designated Agent the right to refuse to purchase and pay for such Shares.
(r)
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder, and
each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to each Agent that the representations
and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance
or of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be
true and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such
sale, as the case may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).
(s)
Reservation of Shares. The Company shall ensure that, at all times, there are sufficient shares of Common Stock to provide for
the issuance, free of any preemptive rights, out of its authorized but unissued shares of Common Stock or shares of Common Stock held
in treasury, of the maximum aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement.
The Company will use its commercially reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain
such listing.
(t)
Obligation Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act,
the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required
by the Exchange Act and the regulations thereunder.
(u)
DTC Facility. The Company shall cooperate with the Agents and use its commercially reasonable efforts to permit the Shares to
be eligible for clearance and settlement through the facilities of DTC.
(v)
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(w)
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file
a Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Agents’ compensation,
and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x)
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares
as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional shares of Common
Stock necessary to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable.
After the effectiveness of any such registration statement, all references to “Registration Statement” included in
this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference therein
pursuant to Item 12 of Form S-3, and all references to “Base Prospectus” included in this Agreement shall be deemed
to include the final form of base prospectus, including all documents incorporated therein by reference, included in any such registration
statement at the time such registration statement became effective.
5.
Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation, printing
or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the
Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement,
the Prospectus, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the
Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange
Act, if applicable, and the listing of the Shares on the Trading Market; (vi) any registration or qualification of the Shares for offer
and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel
for the Agents relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective purchasers of the Shares, if applicable; (viii) the fees and
expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company;
(ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Agents’ counsel, not to exceed $75,000 (excluding
any periodic due diligence fees provided for under Section 4(n)), which shall be paid at the Effective Time; and (xi) all other costs
and expenses incident to the performance by the Company of its obligations hereunder.
6.
Conditions to the Obligations of the Agents. The obligations of the Agents under this Agreement and any Terms Agreement shall
be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution
Time, the Effective Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance
by the Company of its obligations hereunder and (iii) the following additional conditions:
(a)
Effectiveness of the Registration Statement; Filing of Prospectus Supplement. The Registration Statement shall have been declared
effective by the Commission and the Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall
have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus
Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and under the Act; any
other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within
the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or
threatened.
(b)
Delivery of Opinion. The Company shall have caused the Company Counsel to furnish to the Representative its opinion and a negative
assurance statement, dated as of such date and addressed to the Agents, in form and substance acceptable to the Representative.
(c)
Delivery of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Representative, a certificate
of the Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company,
dated as of such date and addressed to the Agents, to the effect that the signers of such certificate have carefully examined the Registration
Statement, the Prospectus, any Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments
thereto and this Agreement and that:
(i)
the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect
as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such date;
(ii)
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii)
since the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents,
there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Registration Statement and the Prospectus.
(d)
Delivery of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants to have
furnished to the Representative, letters (which may refer to letters previously delivered to the Agents), dated as of such date and addressed
to the Agents, in form and substance satisfactory to the Representative, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and
that they have performed an audit of any audited financial information of the Company, and a review of any unaudited interim financial
information of the Company, included or incorporated by reference in the Registration Statement and the Prospectus and provide customary
“comfort” as to such review in form and substance satisfactory to the Representative.
(e)
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement, the
Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease in
previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties
of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive of any amendment
or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Designated
Agent or the Representative, acting reasonably. so material and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Incorporated
Documents and the Prospectus (exclusive of any amendment or supplement thereto).
(f)
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time period
required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r)
of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii)
either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(g)
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and
arrangements under this Agreement.
(h)
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading Market,
and satisfactory evidence of such actions shall have been provided to the Agents.
(i)
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Agents
such further information, certificates and documents as the Agents may reasonably request.
If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance
to the Representative and counsel for the Agents, this Agreement and all obligations of the Agents hereunder may be canceled at, or at
any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Designated Agent or the Representative. Notice of such
cancellation shall be given to the Company in writing or by telephone and confirmed in writing by email.
The
documents required to be delivered by this Section 6 shall be delivered to the office of Ellenoff Grossman & Schole LLP, counsel
for the Agents, at 1345 Avenue of the Americas, New York, New York 10105, email: capmkts@egsllp.com, on each such date as provided in
this Agreement.
7.
Indemnification and Contribution.
(a)
Indemnification by Company. The Company agrees to indemnify and hold harmless each Agent, the directors, officers, employees and
agents of such Agent and each person who controls such Agent within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange
Act or other U.S. federal, state or provincial statutory law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement for the registration of the Shares as originally filed or in any amendment
thereof, or in the Base Prospectus, any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, or arise out of or are based upon any Proceeding, commenced
or threatened (whether or not an Agent is a target of or party to such Proceeding), or result from or relate to any breach of any of
the representations, warranties, covenants or agreements made by the Company in this Agreement, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be liable in any such case to an Agent to the
extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by
such Agent specifically for inclusion therein. This indemnity agreement will be in addition to any liability that the Company may otherwise
have.
(b)
Indemnification by Each Agent. Each of the Agents, severally and not jointly with the other Agents, agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company
to the Agents, but only with reference to written information relating to such Agent furnished to the Company by such Agent specifically
for inclusion in the documents referred to in the foregoing indemnity; provided, however, that in no case shall an Agent
be responsible for any amount in excess of the Broker Fee applicable to the Shares and paid hereunder to such Agent. This indemnity agreement
will be in addition to any liability which an Agent may otherwise have.
(c)
Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section
7, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph
(a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d)
Contribution. In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and each of the Agents, severally and not jointly with the other Agents,
agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending the same) (collectively “Losses”) to which the Company and an Agent may
be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by such
Agent on the other from the offering of the Shares; provided, however, that in no case shall an Agent be responsible for
any amount in excess of the Broker Fee applicable to the Shares and paid hereunder to such Agent. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and each Agent, severally and not jointly with the other Agents, severally
shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company
on the one hand and of such Agent on the other in connection with the statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits received by an Agent shall be deemed to be equal to the Broker
Fee applicable to the Shares and paid hereunder to such Agent as determined by this Agreement. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the one hand or an Agent on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company
and each of the Agents agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person
who controls an Agent within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of such
Agent shall have the same rights to contribution as such Agent, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph
(d).
8.
Termination.
(a)
The Company shall have the right, by giving written notice to the Representative as hereinafter specified, to terminate the provisions
of this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time upon ten (10) Business
Days’ prior written notice. Any such termination shall be without liability of any party to any other party except that (i) with
respect to any pending sale through a Designated Agent for the Company, the obligations of the Company, including in respect of compensation
of the Designated Agent, shall remain in full force and effect notwithstanding the termination and (ii) the provisions of Sections 5,
6, 7, 8, 9, 10, 12, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b)
The Representative shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, 14 and 15 of this Agreement shall
remain in full force and effect notwithstanding such termination.
(c)
This Agreement shall remain in full force and effect until the date that this Agreement is terminated pursuant to Sections 8(a) or (b)
above or otherwise by mutual agreement of the Company and the Representative, provided that any such termination by mutual agreement
shall in all cases be deemed to provide that Sections 5, 6, 7, 8, 9, 10, 12, 14 and 15 of this Agreement shall remain in full force and
effect.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Representative or the Company, as the
case may be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of
the Shares shall settle in accordance with the provisions of Section 2(b) of this Agreement.
(e)
In the case of any purchase of Shares by a Designated Agent pursuant to a Terms Agreement, the obligations of such Designated Agent pursuant
to such Terms Agreement shall be subject to termination, in the absolute discretion of such Designated Agent, by prompt oral notice given
to the Company prior to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the
time of execution of the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Stock shall have been suspended
by the Commission or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited
or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by U.S. federal
or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in
the sole judgment of such Designated Agent, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated
by the Prospectus (exclusive of any amendment or supplement thereto).
9.
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of each Agent set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by an Agent or the Company or any of the officers, directors, employees, agents or controlling persons
referred to in Section 7, and will survive delivery of and payment for the Shares.
10.
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or e-mailed
to the addresses of the Company and Representative set forth on the signature page hereto and to the addresses of each Co-Agent, respectively,
set forth on the signature page of the Joinder hereto.
11.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any right
or obligation hereunder.
12.
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement is
an arm’s-length commercial transaction between the Company, on the one hand, and each Agent and any affiliate through which it
may be acting, on the other, (b) each Agent is acting solely as sales agent and/or principal in connection with the purchase and sale
of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of each Agent in connection
with the offering and the process leading up to the offering is as independent contractor and not in any other capacity. Furthermore,
the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether
an Agent has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that
an Agent has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection
with such transaction or the process leading thereto.
13.
Integration. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or oral)
between the Company and each Agent with respect to the subject matter hereof.
14.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and the Representative. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right.
15.
Termination and/or Addition of Co-Agent under this Agreement. At any time, pursuant to written instructions in writing from the
Company to the Representative, the Representative shall have the right (i) to terminate one or more Co-Agents under this Agreement and
terminate this Agreement with respect to such Co-Agent (“Co-Agent Termination”) and (ii) add one or more investment
banks as a sales agent under this Agreement, thereby adding such investment banks as a Co-Agent under this Agreement (“Co-Agent
Addition”). A Co-Agent Termination shall be effective upon the Representative’s delivery of the written notice of such
termination from the Representative to the terminated Co-Agent. A Co-Agent Addition shall be effective upon the receipt by the Representative
of the executed Joinder by the new Co-Agent.
16.
Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of the State
of New York applicable to contracts made and to be performed within the State of New York. Each of the Company and each of the Agents:
(i) agrees that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in
New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives
any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the
exclusive jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern District
of New York in any such suit, action or proceeding. Each of the Company and each of the Agents further agrees to accept and acknowledge
service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New
York, or in the United States District Court for the Southern District of New York and agrees that service of process upon the Company
mailed by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the Company,
in any such suit, action or proceeding, and service of process upon each Agent mailed by certified mail to such Agent’s address
shall be deemed in every respect effective service process upon such Agent, in any such suit, action or proceeding. If either party shall
commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
17.
Recognition of the U.S. Special Resolutions Regimes. (a) In the event that any Agent that is a Covered Entity becomes subject
to a proceeding under a U.S. Special Resolution Regime, the transfer from such Agent of this Agreement or any Terms Agreement and any
interest and obligation in or under this Agreement or any Terms Agreement will be effective to the same extent as the transfer would
be effective under the U.S. Special Resolution Regime if this Agreement or any Terms Agreement and any such interest and obligation,
were governed by the laws of the United States or a state of the United States; and (b) in the event any Agent that is a Covered Entity
or a BHC Act Affiliate of such Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this
Agreement or any Terms Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such
Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement or any Terms Agreement were governed by
the laws of the United States or a state of the United States. For purposes of Section 15, (A) “BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
(B) “Covered Entity” means any of the following: (i) a “covered entity” as the term is defined in, and
interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 382.2(b); (C) “Default Right” has the meaning assigned to that term in, and shall be interpreted
in accordance with, 12 C.F.R. § 252.81, 47.2 or 382.1, as applicable; and (D) “U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall
Street Reform and Consumer Protection Act and the regulations promulgated thereunder. Notwithstanding the foregoing, if a Agent that
is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime as described in this Section 15, the Representative
shall have the right to terminate this Agreement with respect to such Agent that is a Covered Entity and becomes subject to a proceeding
under a U.S. Special Resolution Regime, effective immediately by giving written notice to such Agent, subject to applicable law, provided
that such termination shall have no effect with respect to the other Agents under this Agreement.
18.
Waiver of Jury Trial. 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, any Terms Agreement or the transactions contemplated
hereby or thereby.
19.
Counterparts. This Agreement and any Terms Agreement may be executed in one or more counterparts, each one of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon one and the same agreement. Counterparts may be delivered
via electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any
counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
***************************
20.
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the
construction hereof.
If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement among the Company and each Agent.
Very
truly yours, |
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u.s.
goldmining inc. |
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By: |
/s/
Tyler Wong |
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Name:
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Tyler
Wong |
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Title:
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Interim
Chief Financial Officer |
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Address
for Notice:
1188
West Georgia Street, Suite 1830
Vancouver,
BC, Canada V6E 4A2
Attention:
Tyler Wong, Interim Chief Financial Officer
E-mail:
twong@us.goldmining.com
The
foregoing Agreement is hereby confirmed and accepted as of the date first written above.
H.C.
WAINWRIGHT & CO., LLC
As Representative of the several Agents
Named
in Schedule I hereto and Lead Agent
By: |
/s/ Mark W. Viklund |
|
Name: |
Mark
W. Viklund |
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Title: |
Chief
Executive Officer |
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Address
for Notice:
430
Park Avenue
New
York, New York 10022
Attention:
Chief Executive Officer
E-mail:
notices@hcwco.com
Form
of Terms Agreement
ANNEX
I
u.s.
goldmining inc.
TERMS
AGREEMENT
Dear
Sirs:
U.S.
GoldMining Inc. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market
Offering Agreement, dated May 15, 2024 (the “At The Market Offering Agreement”), among the Company and H.C.
Wainwright & Co., LLC (“Representative”) and each agent that delivers a Joinder to the At The Market Offering
Agreement (such agent(s), collectively with the Representative, the “Agents”) to issue and sell to Agent selected
by the Company (the “Designated Agent”) the securities specified in the Schedule I hereto (the “Purchased
Shares”).
Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Designated Agent, as agent
of the Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part
of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as therein
defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation to the
Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation to the
Prospectus as amended and supplemented to relate to the Purchased Shares.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased Shares, in the form heretofore delivered to the Designated Agent is now proposed to be filed with
the Securities and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference,
the Company agrees to issue and sell to the Designated Agent and the latter agrees to purchase from the Company the number of shares
of the Purchased Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Designated Agent and the Company.
u.s.
goldmining inc. |
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By: |
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Name:
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Title:
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ACCEPTED
as of the date first written above.
DESIGNATED
AGENT: |
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By: |
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Name: |
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Title: |
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SCHEDULE
I
FORM
OF JOINDER
JOINDER
This
JOINDER (the “Joinder”), dated as of _______, ______, is made by ______________ (the “Co-Agent”),
in agreement with the Company, the Representative and the Co-Agents (as such terms are defined in the ATM Agreement) pursuant to the
At The Market Offering Agreement, dated as of May ___, 2024 (as amended from time to time, the “ATM Agreement”), by
and among U.S. GoldMining Inc., a Nevada corporation (the “Company”), the Representative and the Co-Agents. All capitalized
terms not defined herein shall have the meaning ascribed to them in such ATM Agreement.
W
I T N E S S E T H :
WHEREAS,
the Company, the Representative and the Co-Agents have entered into the ATM Agreement;
WHEREAS,
the ATM Agreement requires a new Co-Agent to become a party to the ATM Agreement; and
WHEREAS,
the Co-Agent has agreed to execute and deliver this Joinder in order to become a party to the ATM Agreement;
NOW,
THEREFORE, IT IS AGREED:
By
executing and delivering this Joinder pursuant to Section 15 of the ATM Agreement, the Co-Agent hereby becomes a party to the ATM Agreement
as a Co-Agent thereunder with the same force and effect as if originally named therein as a party thereto, effective as of the date hereof,
and hereby shall have all of the rights and obligations of a Co-Agent thereunder.
Governing
Law. THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN
WITNESS WHEREOF, the undersigned has caused this Joinder to be duly executed and delivered as of the date first above written.
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Name
of Co-Agent: _________________________ |
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Signature
of Co-Agent: _________________________ |
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Name
of Signatory: ____________________________ |
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Title
of Signatory: _____________________________ |
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Email
for Notice: |
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Address
for Notice: |
Exhibit
5.1
May
15, 2024
U.S.
GoldMining Inc.
1188
West Georgia Street, Suite 1830
Vancouver,
BC, Canada V6E 4A2
Ladies
and Gentlemen:
We
have acted as counsel for U.S. GoldMining Inc., a Nevada corporation (the “Company”), in connection with the
filing with the Securities and Exchange Commission (the “Commission”) on the date hereof, under the Securities
Act of 1933, as amended (the “Act”), of a registration statement on Form S-3 (the “Registration
Statement”) by the Company relating to (i) shares of common stock, $0.001 par value per share, of the Company (the “Common
Stock”), (ii) preferred stock, $0.001 par value per share, of the Company (the “Preferred Stock”),
(iii) warrants to purchase Common Stock or Preferred Stock (the “Warrants”), and (iv) units comprised of one
or more shares of Common Stock, Preferred Stock or Warrants in any combination (the “Units” and, together with
the Common Stock, the Preferred Stock and the Warrants, the “Securities” and individually a “Security”)
that may be issued and sold from time to time pursuant to Rule 415 under the Act for an aggregate initial offering price not to exceed
$40,000,000.
We
also have acted as counsel to the Company in connection with an offering of up to $5,500,000 of shares of Common Stock that may
be issued and sold (the “Sales Agreement Shares”) under an At The Market Offering Agreement executed by the
Company, H.C. Wainwright & Co., LLC, as representative of the agents, and the other agents that become parties thereto, on May 15,
2024 (the “Sales Agreement”). The prospectus for the offer and sale of the Sales Agreement Shares (the “Sales
Prospectus”) is included in the Registration Statement.
For
purposes of the opinions we express below, we have examined originals, or copies certified or otherwise identified, of (i) the Articles
of Incorporation and Bylaws, each as amended and/or restated as of the date hereof (the “Charter Documents”);
(ii) the base prospectus for the offer and sale of the Securities (as may be amended or supplemented, the “Base Prospectus”);
(iii) the Sales Prospectus; (iv) certain resolutions of the Board of Directors of the Company related to the filing of the Registration
Statement, the Base Prospectus, and the Sales Prospectus, the authorization and issuance of the Securities and Sales Agreement Shares,
and related matters; (v) the Registration Statement and all exhibits thereto; (vi) the Sales Agreement; (vii) the specimen Common Stock
certificate of the Company; (viii) a certificate executed by an officer of the Company, dated as of the date hereof; and (ix) such other
records, documents and instruments as we have deemed necessary or appropriate for purposes of the opinions hereafter expressed.
As
to questions of fact material to the opinions expressed below, we have, without independent verification of their accuracy, relied to
the extent we deem reasonably appropriate upon the representations and warranties of the Company contained in such documents, records,
certificates, instruments or representations furnished or made available to us by the Company.
In
making the foregoing examination, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted
to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv)
that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v)
that all factual information on which we have relied was accurate and complete.
Haynes
and Boone, LLP
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30
Rockefeller Plaza | 26th Floor | New York, NY 10112
T:
212.659.7300 | haynesboone.com |
We
have also assumed that (i) the Company will continue to be incorporated and in existence and good standing in its jurisdiction of organization,
(ii) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective; (iii)
no stop order of the Commission preventing or suspending the use of the Base Prospectus contained in the Registration Statement or any
prospectus supplement will have been issued; (iv) a prospectus supplement will have been prepared and filed with the Commission properly
describing the Securities offered thereby and will have been delivered to the purchaser(s) of the Securities as required in accordance
with applicable law; (v) all Securities will be offered, issued and sold in compliance with applicable federal and state securities laws
and in the manner stated in the Registration Statement and the appropriate prospectus supplement; (vi) a definitive purchase, underwriting
or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the
Company and the other parties thereto and will be an enforceable obligation of the parties thereto; (vii) in connection with the sale
of Warrants, any required warrant agreement or agreement relating to the Warrants (a “Warrant Agreement”) will
have been executed and delivered by all applicable parties and will be enforceable in all respects in accordance with its terms; (viii)
in connection with the sale of any Units, any required unit agreement relating to the Units (a “Unit Agreement”)
will have been executed and delivered by all applicable parties and will be enforceable in all respects in accordance with its terms;
(ix) any securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will be duly and validly
authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise; and (x) with respect
to shares of Common Stock or Preferred Stock offered or underlying the Securities offered, there will be sufficient shares of Common
Stock or Preferred Stock authorized under the Charter Documents and not otherwise reserved for issuance.
Based
on the foregoing, and subject to the limitations and qualifications set forth herein, we are of the opinion that:
|
1. |
With
respect to shares of Common Stock, when (i) the Board of Directors of the Company or, to the extent permitted by the Nevada Revised
Statutes and the Charter Documents, a duly constituted and acting committee thereof (such Board of Directors or committee being hereinafter
referred to as the “Company Board”) has taken all necessary corporate action to approve the issuance thereof
and the terms of the offering of shares of Common Stock and related matters, and (ii) certificates representing the shares of Common
Stock have been duly executed, countersigned, registered and delivered, or if uncertificated, valid book-entry notations have been
made in the share register of the Company, in each case in accordance with the provisions of the Charter Documents, either (a) in
accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Company Board and upon payment
of the consideration therefor (which shall not be less than the par value of the Common Stock) provided for therein, all in accordance
with the Registration Statement and any applicable prospectus supplement, or (b) upon conversion, exchange, redemption or exercise
of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing for such
conversion, exchange, redemption or exercise as approved by the Company Board, and for the consideration approved by the Company
Board (which shall not be less than the par value of the Common Stock), all in accordance with the Registration Statement and any
applicable prospectus supplement, the shares of Common Stock will be validly issued, fully paid and non-assessable. The Common Stock
covered in the opinion in this paragraph includes any shares of Common Stock that may be issued upon exercise, conversion or exchange
pursuant to the terms of any other Securities but does not include the Sales Agreement Shares. |
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2. |
With
respect to shares of Preferred Stock, when (i) the Company Board has taken all necessary corporate action to approve and establish
the terms of the shares of Preferred Stock, to approve the issuance thereof and the terms of the offering thereof and related matters,
including the adoption of a Certificate of Designations relating to such Preferred Stock (a “Certificate of Designations”),
and such Certificate of Designations has been filed with the Secretary of State of the State of Nevada, and (ii) certificates representing
the shares of Preferred Stock have been duly executed, countersigned, registered and delivered, or if uncertificated, valid book-entry
notations have been made in the share register of the Company, in each case in accordance with the provisions of the Charter Documents,
either (a) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Company Board
and upon payment of the consideration therefor (which shall not be less than the par value of the Preferred Stock) provided for therein,
all in accordance with the Registration Statement and any applicable prospectus supplement, or (b) upon conversion, exchange, redemption
or exercise of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing
for such conversion, exchange, redemption or exercise as approved by the Company Board, and for the consideration approved by the
Company Board (which shall not be less than the par value of the Preferred Stock), all in accordance with the Registration Statement
and any applicable prospectus supplement, the shares of Preferred Stock will be validly issued, fully paid and non-assessable. |
|
3. |
With
respect to the Warrants, when (i) the Company Board has taken all necessary corporate action to approve the creation of and the issuance
and terms of the Warrants, the terms of the offering thereof and related matters, (ii) the Warrant Agreements and Warrants have been
duly prepared, authorized and validly executed and delivered by the Company and the other parties thereto (if any) in compliance
with all applicable laws, and (iii) the Warrants or certificates representing the Warrants have been duly registered and delivered
in accordance with the appropriate Warrant Agreements and the applicable definitive purchase, underwriting or similar agreement approved
by the Company Board and upon payment of the consideration therefor provided for therein (which shall not be less than the par value
of any Common Stock or Preferred Stock underlying such Warrants), all in accordance with the Registration Statement and any prospectus
supplement, the Warrants will constitute valid and legally binding obligations of the Company. |
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4. |
With
respect to Units, when (i) the Company Board has taken all necessary corporate action to approve the creation of and the issuance
and terms of the Units, the terms of the offering thereof and related matters, (ii) the Unit Agreements and Units have been duly
prepared, authorized and validly executed and delivered by the Company and the other parties thereto (if any) in compliance with
all applicable laws, and (iii) the Units or certificates representing the Units have been duly registered and delivered in accordance
with the appropriate Unit Agreements and the applicable definitive purchase, underwriting or similar agreement approved by the Company
Board and upon payment of the consideration therefor provided for therein (which shall not be less than the par value of any Common
Stock or Preferred Stock underlying such Units), all in accordance with the Registration Statement and any prospectus supplement,
the Units will constitute valid and legally binding obligations of the Company. |
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5. |
The
Sales Agreement Shares are duly authorized and, when such shares have been issued and delivered against payment of the purchase price
therefor (in an amount in excess of the par value thereof) in accordance with the Sales Agreement, and as contemplated by the Registration
Statement, the Sales Agreement Shares will be validly issued, fully paid and nonassessable. |
The
opinions set forth above are subject to the following qualifications, limitations and exceptions:
(a)
The opinions are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, rearrangement, liquidation,
conservatorship or other similar laws now or hereafter in effect relating to or affecting the rights of creditors generally, (ii) provisions
of applicable law pertaining to the voidability of preferential or fraudulent transfers and conveyances and (iii) the fact that the remedy
of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought.
(b)
The opinions are subject to the effect of (i) general principles of equity, including (without limitation) concepts of materiality, reasonableness,
good faith and fair dealing, general matters of public policy and other similar doctrines generally affecting the enforceability of agreements
(regardless of whether considered in a proceeding in equity or at law) (ii) obligations of good faith and fair dealing under New York
law, and (iii) other commonly-recognized statutory and judicial constraints on enforceability, including statutes of limitation, limitations
on rights to indemnification that contravene law or public policy and the effectiveness of waivers of rights or benefits that cannot
be effectively waived under applicable law.
(c)
In rendering the opinions, we have assumed that, at the time of the sale of the Securities, (i) the resolutions of the Company Board
or similar governing body, as reflected in the minutes and proceedings of the Company, will not have been modified or rescinded and (ii)
there will not have occurred any change in the laws affecting the authorization, execution, delivery, issuance, sale, ranking, validity
or enforceability of the Securities, (iii) all third party consents required in connection with the sale of the Securities will have
been received by the Company, (iv) the Registration Statement will have been declared effective by the Commission and will continue to
be effective, (v) none of the particular terms of a series of Securities will violate any applicable law or the terms of any applicable
governing documents and (vi) neither the issuance and sale thereof nor the compliance by the Company with the terms thereof will result
in a violation of any agreement or instrument then binding upon the Company or any order of any court or governmental body having jurisdiction
over the Company.
The
opinions expressed herein are limited to the federal laws of the United States of America, and, to the extent relevant to the opinions
expressed herein, (i) the Nevada Revised Statutes and (ii) the laws of the State of New York, in each case as in effect on the date hereof
(all of the foregoing being referred to as the “Opined on Law”). We do not express any opinion with respect
to any other laws, or the laws of any other jurisdiction (including, without limitation, any laws of any other jurisdiction which might
be referenced by the choice-of-law rules of the Opined on Law), other than the Opined on Law or as to the effect of any such other laws
on the opinions herein stated.
We
hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm contained
therein under the heading “Legal Matters.” In giving this consent, we do not hereby admit we are in the category of persons
whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. This opinion is given
as of the date hereof and we assume no obligation to update or supplement such opinion after the date hereof to reflect any facts or
circumstances that may thereafter come to our attention or any changes that may thereafter occur.
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Very
truly yours, |
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/s/
Haynes and Boone, LLP |
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Haynes
and Boone, LLP |
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 21, 2024 relating to
the financial statements of U.S. GoldMining Inc., appearing in the Annual Report on Form 10-K of U.S. GoldMining Inc. for the year ended
November 30, 2023. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/
Deloitte LLP
Chartered
Professional Accountants
Vancouver, Canada
May 15, 2024
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
U.S.
GoldMining Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
|
|
Security
Type |
|
Security
Class Title |
|
Fee
Calculation or Carry Forward Rule |
|
Amount
Registered |
|
Proposed
Maximum Offering Price Per Unit |
|
Maximum
Aggregate Offering Price |
|
Fee
Rate |
|
Amount
of Registration Fee |
|
Carry
Forward Form Type |
|
Carry
Forward File Number |
|
Carry
Forward Initial Effective Date |
|
Filing
Fee Previously Paid In Connection With Unsold Securities to be Carried Forward |
|
Newly
Registered Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Equity |
|
Common
Stock, $0.001 par value per share |
|
|
|
|
|
(1)(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Equity |
|
Preferred
Stock, $0.001 par value per share |
|
|
|
|
|
(1)(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Other |
|
Warrants |
|
|
|
|
|
(1)(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Other |
|
Units |
|
|
|
|
|
(1)(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be Paid |
|
Unallocated
(Universal) Shelf |
|
Unallocated
(Universal) Shelf |
|
|
457
(o) |
|
|
(1)(2) |
|
|
|
|
$ |
40,000,000 |
|
$ |
0.0001476 |
|
$ |
5,904 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees
Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry
Forward Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Offering Amounts |
|
$ |
40,000,000
|
|
|
|
|
$ |
5,904 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Fees Previously Paid |
|
|
|
|
|
|
|
$ |
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Fee Offsets |
|
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
Fee Due |
|
|
|
|
|
|
|
$ |
5,904 |
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Pursuant
to Rule 416 of the Securities Act, this Registration Statement also includes additional shares of common stock issuable upon stock
splits, stock dividends or similar transactions. These offered securities may be sold separately, together or as units with other
offered securities. An unspecified number of securities or aggregate principal amount, as applicable, is being registered as may
from time to time be offered at unspecified prices. |
|
|
(2) |
Pursuant
to Rule 457(o) under the Securities Act, which permits the registration fee to be calculated on the basis of the maximum offering
price of all the securities listed, the table does not specify by each class information as to the amount to be registered, proposed
maximum offering price per unit or proposed maximum aggregate offering price. The aggregate public offering price of securities sold
by the Registrant (including newly listed securities and carry-forward securities) will not exceed $40,000,000. |
Table
2: Fee Offset Claims and Sources
N/A
Table
3: Combined Prospectuses
N/A
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