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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
November 15, 1995
FIRSTMISS GOLD INC.
(Exact name of registrant as specified in its charter)
Nevada
(State or other jurisdiction of incorporation or organization)
0-16484 64-0748908
(Commission File Number) (I.R.S. Employer Identification No.)
5460 S. Quebec Street, Suite 240
Englewood, Colorado 80111
(Address of principal executive offices) (Zip Code)
(303) 771-9000
(Registrant's telephone number, including area code)
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Item 7 FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
C) Exhibits
The following exhibits are filed with this report.
No. Exhibit
--- -------
1 Form of Underwriting Agreement by and among the registrant and
Nesbitt Burns Securities Inc., Nesbitt Burns Inc., Salomon
Brothers Inc, Salomon Brothers Canada Inc, ScotiaMcLeod Inc.,
ScotiaMcLeod (USA) Inc., S.G.Warburg & Co. Inc. and Toronto
Dominion Securities Inc., dated as of November 15, 1995, which
is being filed pursuant to Regulation S-K, Item 601(b)(1) in
lieu of filing the otherwise required exhibit to the
registrant's Registration Statement on Form S-3, File No.
33-62449, under the Securities Act of 1933, as amended, and
which, since this Form 8-K filing is incorporated by reference
in such registration statement, is set forth in full in such
registration statement.
5(a) Legal opinion of Latham & Watkins, which is being filed
pursuant to Regulation S-K, Item 601(b)(5) as a required
exhibit to the registrant's Registration Statement on Form S-3,
File No. 33-62449, under the Securities Act of 1933, as
amended, and which, since this Form 8-K filing is incorporated by
reference in such registration statement, is set forth in full
in such registration statement.
5(b) Legal opinion of Marshall, Hill, Cassas & de Lipkau, which is
being filed pursuant to Regulation S-K, Item 601(b)(5) as a
required exhibit to the registrant's Registration Statement on
Form S-3. File No. 33-62449, under the Securities Act of 1933,
as amended, and which, since this Form 8-K filing is
incorporated by reference in such registration statement, is
set forth in full in such registration statement.
23(b) Consent of Latham & Watkins (included in the opinion filed as
Exhibit 5(a) hereto), which is being filed pursuant to
Regulation S-K, Item 601(b)(23) as a required exhibit to the
registrant's Registration Statement on Form S-3, File No.
33-62449, under the Securities Act of 1933, as amended, and
which, since this Form 8-K filing is incorporated by reference
in such registration statement, is set forth in full in such
registration statement.
23(c) Consent of Marshall, Hill, Cassas & de Lipkau (included in the
opinion filed as Exhibit 5(b) hereto), which is being filed
pursuant to Regulation S-K, Item 601(b)(23) as a required
exhibit to the registrant's Registration Statement on Form S-3,
File No. 33-62449, under the Securities Act of 1933, as amended,
and which, since this Form 8-K filing is incorporated by
reference in such registration statement, is set forth in full
in such registration statement.
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FIRSTMISS GOLD INC.
Date: November 15, 1995 By /s/ Donald S. Robson
------------------------------------
Donald S. Robson
Vice President, Chief Financial
Officer and Secretary
3
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EXHIBIT INDEX TO FORM 8-K
<TABLE>
<CAPTION>
Exhibit
- -------
Number Description
- ------- -----------
<S> <C>
1 Form of Underwriting Agreement
5(a) Legal Opinion of Latham & Watkins
5(b) Legal Opinion of Marshall, Hill, Cassas & de Lipkau
23(b) Consent of Latham & Watkins (included in Exhibit 5(a))
23(c) Consent of Marshall, Hill, Cassas & de Lipkau (included in Exhibit 5(b))
</TABLE>
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EXHIBIT 1
FirstMiss Gold Inc. November 15, 1995
5460 South Quebec Street
Suite 240
Englewood, Colorado 80111
Attention: Donald S. Robson
Vice-President and Chief Financial Officer
Dear Sirs:
The undersigned, Nesbitt Burns Securities Inc., Nesbitt Burns
Inc., Salomon Brothers Inc, Salomon Brothers Canada Inc, ScotiaMcLeod Inc.,
ScotiaMcLeod (USA) Inc., S.G.Warburg & Co. Inc. and Toronto Dominion
Securities Inc. (collectively, the "Underwriters" and individually, an
"Underwriter"), understand that FirstMiss Gold Inc., a Nevada corporation (the
"Company") proposes to issue and sell to the Underwriters 6,500,000 shares of
common stock of the Company (the "Firm Shares") and, for the sole purpose of
covering over allotments in connection with the sale of the Firm Shares, at the
option of the Underwriters, up to an additional 975,000 shares of common stock
of the Company (the "Option Shares"). The Firm Shares and any Option Shares
purchased by the Underwriters are collectively referred to herein as the
"Subject Shares".
We understand that the Company has filed with the Securities
and Exchange Commission (the "SEC") pursuant to Rule 415 under the United
States Securities Act of 1933, as amended (the "1933 Act"), a registration
statement on Form S-3 (No. 33-62449) (such registration statement, as amended
at the time it became effective on November 1, 1995 under the 1933 Act,
including the exhibits thereto and the documents incorporated by reference
therein, being hereafter referred to as the "Shelf Registration Statement") and
a related prospectus dated November 1, 1995 (the "U.S. Shelf Prospectus") and
has filed with the Canadian Securities Authorities (as defined below) a
Canadian shelf prospectus (the "Canadian Shelf Prospectus") under the
applicable laws of each of the Provinces of Canada other than the Province of
Quebec (collectively, the "Canadian Jurisdictions") under the provisions of
National Policy Statement 45 of the Canadian Securities Administrators ("NP
45") to register and qualify the offering and sale of, among other securities,
the Subject Shares.
We understand that the Company wishes to distribute to the
public in the United States and in Canada (other than in Quebec) the Subject
Shares and to have such shares listed on The Toronto Stock Exchange (the "TSE")
and on The Nasdaq National Market. To that end,
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the Company has filed with the SEC pursuant to Rule 424 under the 1933 Act a
U.S. preliminary prospectus supplement dated November 7, 1995 (the "U.S.
Preliminary Prospectus Supplement") to the U.S. Shelf Prospectus and has filed
under NP 45 with the Canadian Securities Authorities (as defined below) in each
of the Canadian Jurisdictions a Canadian preliminary prospectus supplement
dated November 7, 1995 (the "Canadian Preliminary Prospectus Supplement") to
the Canadian Shelf Prospectus in respect of the distribution of the Subject
Shares.
We understand that the Company will prepare and file, without
delay, with the SEC pursuant to Rule 424 under the 1933 Act a final U.S.
prospectus supplement (the "U.S. Final Prospectus Supplement") to the U.S.
Shelf Prospectus in respect of the distribution of the Subject Shares in the
United States and will prepare and file, without delay, in each of the Canadian
Jurisdictions pursuant to NP 45 a final Canadian prospectus supplement (the
"Canadian Final Prospectus Supplement") in order to qualify the Subject Shares
for distribution (or distribution to the public, as the case may be) in each of
the Canadian Jurisdictions.
On the basis of the representations and warranties and upon
and subject to the terms and conditions contained herein, the Underwriters
hereby agree to purchase from the Company, in the respective percentages
hereinafter mentioned, and the Company hereby agrees to sell to the
Underwriters on the Closing Date, the Firm Shares for a price of U.S. $18.57
per share or an aggregate purchase price of US$120,705,000.
In addition, the Company hereby grants to the Underwriters a
non-assignable option to purchase up to 975,000 Option Shares at the same
purchase price per share to be paid by the Underwriters to the Company for the
Firm Shares as set forth in the preceding paragraph, for the sole purpose of
covering over-allotments in the sale of Firm Shares by the Underwriters. This
option may be exercised at any time, in whole or in part, on or before the
thirtieth day following the date of the Prospectuses, by written notice by the
Underwriters to the Company. Such notice shall set forth the aggregate number
of Option Shares as to which the option is being exercised and the date and
time, as reasonably determined by the Underwriters, when the Option Shares are
to be delivered (such date and time being herein sometimes referred to as the
"Option Closing Date"); provided, however, that the Option Closing Date shall
not be earlier than the Closing Date or earlier than the second full Business
Day after the date on which the option shall have been exercised nor later than
the fourth full Business Day after the date on which the option shall have been
exercised. Certificates for the Option Shares shall be registered in such name
or names and in such authorized denominations as the Underwriters may request
in writing at least two full Business Days prior to the Option Closing Date.
The portion of Option Shares to be sold to each Underwriter
and its Affiliated Underwriter, if any, shall be the same portion of the Firm
Shares being purchased by such
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Underwriter as set forth opposite the name of such Underwriter and its
Affiliated Underwriter, if any, in Section 17 hereof.
In this Agreement all dollar references are to United States
dollars unless otherwise specifically indicated, and the following terms shall
have the following meanings ascribed to them:
"Affiliated Underwriter" has the meaning set forth in Section
17.
"Business Day" means any day other than a Saturday or a Sunday
on which banks in Toronto, Ontario and in New York, New York, are open for the
conduct of business;
"Canadian Preliminary Prospectus" means the Canadian Shelf
Prospectus, including the documents incorporated by reference therein, as
modified and supplemented by the Canadian Preliminary Prospectus Supplement,
and as amended by any Prospectus Amendment prior to the date of the Canadian
Final Prospectus Supplement;
"Canadian Prospectus" means the Canadian Shelf Prospectus,
including the documents incorporated by reference therein, as modified and
supplemented by the Canadian Final Prospectus Supplement, and as the same may
be amended by any Prospectus Amendment;
"Canadian Securities Authorities" means the securities
commission or a similar securities regulatory authority or administrator
established pursuant to Canadian securities laws in each of the Canadian
Jurisdictions;
"Canadian securities laws" means, collectively, the applicable
securities laws of each of the Canadian Jurisdictions, the respective
regulations, rulings and orders made thereunder and the applicable published
policy statements issued by the Canadian Securities Authorities thereunder;
"Canadian Underwriters" means Nesbitt Burns Inc., Salomon
Brothers Canada Inc, ScotiaMcLeod Inc. and Toronto Dominion Securities Inc.;
"Effective Date" means the date as of which the Registration
Statement became effective;
"Preliminary Prospectus Supplements" means, collectively, the
Canadian Preliminary Prospectus Supplement and the U.S. Preliminary Prospectus
Supplement;
"Prospectuses" means the Canadian Prospectus and the U.S.
Prospectus;
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"Prospectus Amendment" means any amendment or supplement to
any or all of the Preliminary Prospectuses, the Prospectuses or the
Registration Statement, as the case may be;
"Registration Statement" means the Shelf Registration
Statement, including the documents incorporated by reference therein, and if
amended, as amended at the time such amendment becomes effective, and when
supplemented, as supplemented at the time such supplement is first filed with
the SEC or delivered to the Underwriter for use in offering the Subject Shares
in the United States (unless the context indicates otherwise);
"Specified Agreements" means the Post Spin-off Agreement, the
Tax Sharing Agreement, the Tax Ruling Agreement, the FirstMiss Loan Agreement,
the Toronto-Dominion Loan Agreement, and the Euro-Nevada Royalty Agreement.
"Subsidiary" means FMG Inc., a Nevada corporation ;
"Underwriters' Canadian Representative" means Nesbitt Burns
Inc.;
"Underwriters' U.S. Representative" means Nesbitt Burns
Securities, Inc.
"U.S. Preliminary Prospectus" means the U.S. Shelf Prospectus
as modified and supplemented by the U.S. Preliminary Prospectus Supplement,
and as the same may be amended by any Prospectus Amendment prior to the date of
the U.S. Final Prospectus Supplement;
"U.S. Prospectus" means the U.S. Shelf Prospectus including
the documents incorporated by reference therein, as modified and supplemented
by the U.S. Final Prospectus Supplement and as the same may be amended by any
Prospectus Amendment;
"U.S. Underwriters" means Nesbitt Burns Securities Inc.,
Salomon Brothers Inc, ScotiaMcLeod (USA) Inc. and S.G.Warburg & Co. Inc.;
"1933 Act Regulations" mean the rules and regulations of the
SEC under the 1933 Act; and
"1934 Act" means the United States Securities Exchange Act of
1934, as amended.
The following are the terms and conditions of the agreement
between the Company and the Underwriters:
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1. The Company shall not later than November 17, 1995 have
prepared and filed with the SEC pursuant to Rule 424(b) of the 1933 Act
Regulations the U.S. Final Prospectus Supplement.
2. The Company shall have prepared and filed with the Canadian
Securities Authorities under applicable Canadian securities laws pursuant to NP
45 not later than November 17, 1995 in the province of Ontario and November 20,
1995 in each of the other Canadian Jurisdictions the Canadian Final Prospectus
and shall have taken all other steps and proceedings that may be necessary in
order to qualify the Subject Shares for distribution (or distribution to the
public, as the case may be) in each of the Canadian Jurisdictions by the
Canadian Underwriters under the provisions of Canadian securities laws.
3. Prior to the filing of the U.S. Final Prospectus Supplement
and the Canadian Final Prospectus and, if applicable, prior to the filing
thereafter of any Prospectus Amendment and prior to the filing of any
Supplementary Material, including on the intervening weekends, the Company
shall have allowed the Underwriters to participate fully in the preparation of
such documents and shall have allowed the Underwriters to conduct all due
diligence which the Underwriters may reasonably require to conduct in order to
fulfil their obligations as underwriters and in order to enable the Canadian
Underwriters responsibly to execute the certificate required to be executed by
the Canadian Underwriters in the Canadian Final Prospectus Supplement and in
any Prospectus Amendment.
4. (a) On the Closing Date and the Option Closing Date, as
applicable, the Company shall have caused a favourable legal opinion to be
delivered to the Underwriters by Marshall, Hill, Cassas & de Lipkau to the
effect that:
(i) The Company is a corporation duly incorporated and
existing under the laws of the State of Nevada with full corporate
power and corporate authority to own, lease and operate its properties
and assets and to conduct its business as described in the
Registration Statement and the Prospectuses, and is duly qualified and
in good standing in the State of Nevada;
(ii) The Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the state of Nevada,
with full corporate power and corporate authority to own, lease, and
operate its properties and assets and to conduct its business as
described in the Registration Statement and the Prospectuses; and all
the outstanding shares of capital stock of the Subsidiary have been
duly authorized and validly issued, are fully paid and
nonassessable,and the Company is the registered and beneficial owner
of all the outstanding shares of capital stock of the Subsidiary;
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(iii) The authorized and outstanding capital of the Company
is as set forth under the caption "Consolidated Capitalization" in the
Prospectuses; and the authorized capital stock of the Company conforms
in all material respects as to legal matters to the description
thereof contained the Prospectuses under the caption "Description of
Common Stock";
(iv) The Subject Shares have been duly authorized and, when
issued and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be validly issued, fully paid
and non-assessable and free of any preemptive or, to the knowledge of
such counsel, similar rights that entitle or will entitle any person
to acquire any Shares upon the issuance thereof by the Company;
(v) The Company has the corporate power and corporate
authority to enter into this Agreement and to issue, sell and deliver
the Subject Shares to be sold by it to the Underwriters as provided
herein, and this Agreement has been duly authorized and, to the extent
that execution and delivery are matters of Nevada law, has been duly
executed and delivered by the Company and is a valid, legal and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that (A) enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (B) the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses and to
the discretion of the court before which the proceedings may be
brought and (C) rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or the public policy
underlying such laws;
(vi) To the knowledge of such counsel, neither the Company
nor the Subsidiary is in violation of its certificate of incorporation
or in material violation of its bylaws;
(vii) None of the issuance, sale or delivery of the Subject
Shares, the execution, delivery or performance of this Agreement, the
compliance by the Company with all provisions of this Agreement, nor
the consummation by the Company of the transactions contemplated
hereby conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate or bylaws
of the Company, nor will any such action result in any violation of
any existing Nevada or United States federal law or regulation
(assuming compliance with all applicable state securities and Blue Sky
laws) or any judgment, injunction, order or decree known to such
counsel, and applicable to the Company or any of its properties, which
violation would have a material adverse effect on the Company and the
Subsidiary, taken as a whole;
(viii) No consent, approval, authorization or other order, or
registration or filing with, any court, regulatory body,
administrative agency or other governmental body,
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agency, or official is required on the part of the Company under
Nevada]or United States federal law or regulation (except as have been
obtained under the 1933 Act or the 1934 Act) for the valid issuance
and sale of the Subject Shares to the Underwriters as contemplated by
this Agreement;
(ix) Courts of competent jurisdiction in the State of Nevada
("Nevada Courts") have generally recognized the ability of contracting
parties to choose the law which will govern their contracts, provided
that (i) the chosen state law has a substantial relationship to the
transactions, (ii) the parties have acted in good faith and not to
evade the law of the real situs of the contracts and (iii) the
provisions of the contract are not contrary to public policy, as that
term may be applied by a Nevada Court. Based on our knowledge, while
the matter is not entirely free from doubt, we believe that if the
matter is properly presented, the Nevada Courts will honor the choice
of law provision in paragraph 21 hereof, subject to clauses (i)-(iii)
above. We are not aware of any provision of this Agreement that would
be deemed to violate the public policy of the State of Nevada, based
upon current Nevada case law or current Nevada statutes.
(b) On the Closing Date and the Option Closing Date, as applicable, the
Company shall have caused a favourable legal opinion to be delivered to the
Underwriters by Latham & Watkins, U.S. counsel to the Company, to the effect
that:
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(ii) To the knowledge of such counsel, neither the Company
nor the Subsidiary is (A) in violation of its certificate of
incorporation or in material violation of its bylaws or (B) in default
in the performance of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence of
indebtedness specifically identified to such counsel (collectively,
"Material Agreements"), except as has been disclosed in the
Prospectuses or where any such default or defaults in the aggregate
would not have a material adverse effect on the Company and the
Subsidiaries, taken as a whole;
(iii) The issuance, sale and delivery of the Subject Shares
by the Company pursuant to this Agreement, and the consummation by the
Company of the transactions contemplated hereby will not result in a
violation of the certificate or bylaws of the Company or any federal
or New York statute (other than federal or state securities laws,
which are specifically addressed elsewhere herein), or in the breach
of or default under any Specified Agreement or Material Agreement, nor
will any such action result in any violation of any judgment,
injunction, order or decree known to such counsel without having made
any investigation, and applicable to the Company or any of its
properties,
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which violation would have a material adverse effect on the Company
and the Subsidiary, taken as a whole;
(iv) Based upon laws which are normally applicable to
transactions of the type contemplated by this Agreement, to the
knowledge of such counsel, no consent, approval, authorization or
order of or filing with, any federal or New York court or governmental
agency or body is required for the consummation of the issuance and
sale of the Subject Shares by the Company pursuant to this Agreement
except as have been obtained under the 1933 Act and such as may be
required under state securities laws in connection with the purchase
and distribution of the Subject Shares by the Underwriters;
(v) The Registration Statement has become effective under the
1933 Act, and to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and, no proceedings therefor have been
instituted or are threatened by the SEC. Any filing of the U.S.
Prospectus in connection with the offering of the Subject Shares on a
delayed basis pursuant to Rule 415 under the 1933 Act as required
pursuant to Rule 424(b) under the 1933 Act has been made in accordance
with Rule 424(b) under the 1933 Act;
(vi) The Registration Statement and the U.S. Prospectus
comply as to form in all material respects with the requirements for
registration statements on Form S-3 under the 1933 Act and the rules
and regulations of the SEC thereunder; it being understood, however,
that such counsel need express no opinion with respect to the
financial statements, schedules and other financial and statistical
data included in the Registration Statement or the U.S. Prospectus.
In passing upon the compliance as to form of the Registration
Statement and the U.S. Prospectus, such counsel may assume that the
statements made and incorporated by reference therein are correct and
complete;
(vii) To the knowledge of such counsel, (A) other than as
described or contemplated in the U.S. Prospectus, there are no legal
or governmental proceedings pending or threatened against the Company
or the Subsidiary which are material to the Company and the Subsidiary
taken as a whole, or to which the Company or the Subsidiaries, or any
of their respective properties is subject which are material to the
Company and the Subsidiary taken as a whole, that are required to be
described in the U.S. Prospectus and (B) there are no agreements,
contracts, indentures, leases or other documents relating to the
Company, of a character that are required to be described in the U.S.
Prospectus that are not described as required, as the case may be;
(viii) The statements made in the Canadian Prospectus
relating to United States federal income tax laws and regulations
under "Certain United States Federal Tax Consequences to Canadian
Holders", to the extent that the foregoing statements constitute
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matters of law or legal conclusions, have been reviewed by such
counsel and fairly present the information disclosed therein in all
material respects;
In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the United States and Canadian counsel to the Company, and
the Underwriters' representatives at which the contents of the Registration
Statement and the U.S. Prospectus and related matters were discussed, and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the U.S. Prospectus and have not
made an independent check or verification thereof (subject to subparagraph
(viii) above), during the course of such participation (relying as to
materiality to a large extent upon the statements of officers and other
representatives of the Company), no facts have come to such counsel's attention
that cause it to believe that the Registration Statement at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the U.S. Prospectus, as of its dates
contained an 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; it being understood that such
counsel need express no belief with respect to the financial statements,
schedules and other financial and statistical data included in the Registration
Statement or the U.S. Prospectus.
(c) On the Closing Date and the Option Closing Date, as
applicable, the Company shall have caused a favourable legal opinion to be
delivered to the Underwriters by McCarthy Tetrault, special Canadian counsel to
the Company (who may rely on the opinions of local counsel acceptable to
counsel to the Underwriters as to the qualification of the Subject Shares for
sale to the public and as to other matters governed by the laws of
jurisdictions other than the provinces in which they are qualified to practice
and may rely, to the extent appropriate in the circumstances, as to matters of
fact on certificates of officers, public officials or of the auditors of the
Company) to the effect that:
(i) the statements in the Canadian Prospectus under
"Eligibility for Investment" are accurate in all material respects;
(ii) to the knowledge of such counsel, no order having the
effect of ceasing or suspending the distribution of the Subject Shares
has been issued by any Canadian Securities Authority or stock exchange
in Canada and no proceedings for that purpose have been instituted or
threatened by any Canadian Securities Authority or stock exchange in
Canada;
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(iii) assuming that the Registration Statement and the U.S.
Prospectus comply as to form in all material respects with the
requirements for registration statements on Form S-3 under the 1933
Act and the rules and regulations of the SEC thereunder, the Canadian
Prospectus and any supplements or amendments thereto (except for the
financial statements or any notes or schedules thereto or any other
financial or statistical data included or incorporated by reference
therein, and the information included on the authority of geological
experts, as to which such counsel need not express any opinion) comply
as to form in all material respects with the applicable form
requirements of the Canadian securities laws;
(iv) assuming that the Registration Statement and the U.S.
Prospectus comply as to form in all material respects with the
requirements for registration statements on Form S-3 under the 1933
Act and the rules and regulations of the SEC thereunder and compliance
with Rule 415 and Rule 424(b) under the 1933 Act, all necessary
documents have been filed and proceedings taken under the laws of each
of the Canadian Jurisdictions to qualify the Subject Shares for
distribution and distribution to the public, as the case may be, in
such jurisdictions, through registrants registered under the
applicable Canadian securities laws in such provinces who comply with
the relevant provisions of such laws.
(v) the statements made in the Canadian Prospectus relating
to Canadian federal income tax laws and regulations under "Certain
Canadian Federal Income Tax Considerations", to the extent that the
foregoing statements constitute matters of law or legal conclusions,
have been reviewed by such counsel and fairly present the information
disclosed therein in all material respects;
(vi) the choice of the laws of the State of New York as the
governing law of the Underwriting Agreement is a valid choice of law
and in an action brought before a court of competent jurisdiction in
the Province of Ontario, the substantive laws of the State of New York
would, to the extent specifically pleaded and proved as a fact by
expert evidence, be recognized and applied by such court to all issues
which under the conflict of laws rules of the Province of Ontario are
to be determined in accordance with the proper or governing law of the
Underwriting Agreement, which issues would include those relating to
the enforceability of the Underwriting Agreement provided that:
(a) such choice is legal under the laws of the State of
New York; and
(b) such choice is made bona fide and is not made to
avoid the mandatory provisions of the law of the
jurisdiction that an Ontario court would, in the
absence of such choice, have applied; and
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except that any such court will not apply:
(c) those laws of the State of New York which it
characterizes as being of a revenue, penal or public
law nature, nor
(d) those laws of the State of New York, the application
of which would be inconsistent with "public policy"
as such term is applied by the courts in Ontario.
In any such action, an Ontario court would apply the
administrative and procedural laws of the Province of Ontario (including those
administrative and procedural laws relating to the enforceability of the
Underwriting Agreement) and not the administrative or procedural laws of the
State of New York.
(vii) The laws of the Province of Ontario would permit an
action to be brought in the appropriate courts of the Province of
Ontario on a final and conclusive foreign judgment in personam in
respect of the Underwriting Agreement, which is not impeachable as
void or voidable under the internal laws of the foreign jurisdiction,
for a definite sum of money provided that:
(a) the court rendering such judgment had jurisdiction
according to Ontario conflicts of laws rules over the
judgment debtor;
(b) such judgment was not obtained by fraud or in a
manner contrary to "natural justice" and the
enforcement thereof would not be inconsistent with
"public policy", as such terms are applied by the
courts in Ontario or contrary to any order made by
the Attorney General of Canada under the Foreign
Extraterritorial Measures Act (Canada);
(c) no new admissible evidence relevant to the action is
discovered prior to the rendering of a judgment by a
court of the Province of Ontario;
(d) the procedural rules of commencement and maintenance
of the enforcement proceedings in the Province of
Ontario are observed;
(e) the enforcement of such a judgment does not
constitute, directly or indirectly, the enforcement
of foreign revenue, penal or public laws; and
(f) there has been compliance with the Limitations Act
(Ontario), which provides that an action to enforce a
foreign judgment must be commenced within six years
of the date of the foreign judgment.
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In addition, such counsel shall state that it has participated
in conferences and meetings with representatives of the Underwriters, their
counsel and representatives of the Company, its United States counsel and its
auditors at which the Canadian Preliminary Prospectus Supplement and the
Canadian Final Prospectus Supplement were discussed, and that such counsel has
not participated in the preparation of the Registration Statement, the U.S.
Shelf Prospectus, the Canadian Shelf Prospectus or any of the documents
incorporated by reference therein other than the Canadian Preliminary
Prospectus Supplement and the Canadian Final Prospectus Supplement. Such
counsel shall also state that because the primary purpose of its professional
engagement was not to establish or confirm factual matters and because many
determinations involved in the preparation of the Canadian Prospectus and the
documents incorporated by reference therein are of a wholly or partially
non-legal character or relate to legal matters outside the scope of such
counsel's opinion letter to the Underwriters as of the Closing Date or the
Option Closing Date, as the case may be, such counsel is not passing upon and
will not be liable or responsible in any way for the accuracy, completeness or
fairness of the statements contained in the Canadian Prospectus or the
documents incorporated by reference therein (except to the extent that such
statements constitute conclusions of Canadian law in respect of which such
counsel has given its express opinion) and such counsel will make no
representation that it has independently verified the accuracy, completeness or
fairness of such statements (except as aforesaid). Such counsel is not being
requested to and will not make any comment with respect to the financial
statements or any notes or schedules thereto or any other financial or
statistical data included or incorporated by reference in the Canadian
Prospectus.
Such counsel will further state that based on and subject to
the foregoing, nothing has come to its attention in the course of its review
that has caused it to believe that the Canadian Prospectus on the date thereof
or on the Closing Date or the Option Closing Date, as the case may be,
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated in the Canadian
Prospectus or that is necessary to make the statements therein not misleading,
in the light of the circumstances under which they were made. For the purposes
of the foregoing, the term "material fact" has the meaning ascribed thereto in
the Securities Act (Ontario).
(d) On the Closing Date and the Option Closing Date, as
applicable, the Underwriters shall have received from Skadden, Arps, Slate,
Meagher & Flom, U.S. counsel to the Underwriters as to the matters set forth in
paragraphs 4(b)(i), (v) and (vi) and from Davies, Ward & Beck, Canadian counsel
to the Underwriters, as to the matters set forth in paragraphs 4(c) (i), (iii),
(iv) and (v);
5. The Company shall cause to be delivered to the Underwriters by
its auditors comfort letters dated the date of the Prospectuses and the Closing
Date and the Option Closing Date, as applicable, respectively, and addressed to
the Underwriters and the directors of the Company, in form and substance
reasonably satisfactory to the Underwriters, relating to the
<PAGE> 13
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verification of financial information and accounting data contained in the
Prospectuses (including information incorporated therein by reference) relating
to the Company and matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectuses to a date not more than two business days prior to the date of
such letters. Such letter shall further state (i) that such auditors are
independent with respect to the Company within the meaning of applicable
Canadian securities laws and the published rules, regulations and policy
statements thereunder, and that in their opinion the audited financial
statements of the Company included in the Canadian Prospectus comply as to form
in all material respects with the applicable accounting requirements of
applicable Canadian securities laws and the published rules, regulations and
policy statements thereunder, and (ii) that such auditors are independent
public accountants within the meaning of the 1933 Act and the 1933 Act
Regulations, and that in their opinion the audited financial statements of the
Company included or incorporated in the Registration Statement and the U.S.
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations. A
similar letter shall be delivered to the Underwriters with respect to any
Prospectus Amendment.
6. The closing of the purchase and sale of the Firm Shares herein
provided for shall be completed at the offices of Skadden, Arps, Slate, Meagher
& Flom, 919 Third Avenue, New York, New York, at 9:00 a.m. (local time) on
November 21, 1995 (the "Time of Closing" and "Closing Date" respectively) or at
such other time and/or on such other date, not later than November 28, 1995, as
the Company and the Underwriters may agree upon. At the Time of Closing on the
Closing Date, the Company shall deliver to the Underwriters:
(i) one share certificate representing the Firm Shares. The
share certificate shall be registered in the name of and delivered to
Nesbitt Burns Securities Inc. or in such other name or names as shall
be designated by Nesbitt Burns Securities Inc. in writing by 10:00
a.m., New York time on November 20, 1995; and
(ii) the requisite legal opinions and comfort letters as
contemplated above and such further documentation as may be
contemplated herein or as counsel to the Underwriters may reasonably
require;
against payment of the aggregate purchase price as set out on page 2, which
payment shall be made to the Company in U.S. dollars by certified or official
bank cheque or cheques drawn in New York Clearing House funds or similar next
day funds payable to the order of the Company.
7. The Company covenants and agrees with the Underwriters that:
(i) the Company shall use its reasonable best efforts, in
cooperation with the Underwriters, to register or qualify the Subject
Shares for offering and sale under the
<PAGE> 14
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applicable securities or Blue Sky laws of such states of the United
States as the Underwriters may reasonably designate and to maintain
such qualifications in effect for so long as required for the
distribution of the Subject Shares and will file such consents to
service of process or other documents necessary or appropriate in
order to effect such registration or qualification; provided, however,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
(ii) the Company will advise the Underwriters promptly (A) of
the filing of the Prospectuses and of any amendment of or supplement
thereto, (B) of any request by any Canadian Securities Authority or
the SEC for any amendment of or supplement to the Registration
Statement or the Prospectuses or for additional information and (C) of
the institution or, to the extent known by the Company, threatening by
the SEC or any Canadian Securities Authority of any stop order
proceedings in respect of the Registration Statement or the
Prospectuses, or any proceedings, with respect to the suspension of
the qualification of the Subject Shares for distribution in any
jurisdiction or with respect to any order to cease trade any
securities of the Company in any jurisdiction;
(iii) the Company will use its reasonable best efforts to
prevent the issuance of any stop order, cease trading order or
suspension referred to in (ii) above and to obtain as soon as possible
the lifting of any such stop order, cease trading order or suspension,
if issued;
(iv) the Company will not (A) file any amendment to the
Registration Statement or make or file any amendment or supplement to
the Prospectuses of which the Underwriters shall not previously have
been advised or to which the Underwriters shall reasonably object in
writing after being so advised or (B) so long as, in the written
opinion of counsel for the Underwriters (a copy of which shall be
delivered to the Company), a prospectus is required to be delivered in
connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Canadian Securities
Laws or the 1934 Act, without delivering a copy of such information,
documents or reports to the Underwriters, prior to or concurrently
with such filing;
(v) the Company will promptly inform the Underwriters in
writing during the period of distribution of the Subject Shares of the
full particulars of any change (including, without limitation, any
material change (as defined in the Securities Act (Ontario)), whether
actual, anticipated or threatened, in the condition (financial or
otherwise), assets, liabilities, business or operations of the Company
and the Subsidiary taken as a whole or of the happening of any event
which (A) insofar as the Canadian
<PAGE> 15
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Securities Laws are concerned, is, or may be, of such a nature as to
render the Canadian Prospectus untrue, false or misleading in a
material respect, or would result in such document containing a
misrepresentation (as defined in the Securities Act (Ontario)) or not
complying with the Canadian Securities Laws or which change or event
would reasonably be expected to have a significant effect on the
market price or value of the Subject Shares and (B) insofar as the
1933 Act is concerned, makes any statement of a material fact made in
the Registration Statement or the U.S. Prospectus untrue or which
requires the making of any additions to or changes in the Registration
Statement or the U.S. Prospectus in order to state a material fact
required by the 1933 Act or the 1933 Act Regulations to be stated
therein or necessary in order to make the statements therein (1) in
the case of the Registration Statement, not misleading and (2) in the
case of the U.S. Prospectus, in light of the circumstances under which
they were made, not misleading;
(vi) the Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and will use its
reasonable best efforts to promptly deliver after the execution hereof
and for so long as delivery of a prospectus by an Underwriter may be
required by the 1933 Act or Canadian Securities Laws, as many copies
of the U.S. Preliminary Prospectus Supplement and the U.S. Prospectus
Supplement and any Prospectus Amendment as the U.S. Underwriters may
reasonably request in the City of New York, and as many commercial
copies of each of the Canadian Preliminary Prospectus and the
Canadian Prospectus and any Prospectus Amendment as the Canadian
Underwriters may reasonably request in the city of Toronto for the
purposes contemplated by Canadian Securities Law. If during such
period of time any event of the type described in paragraph 7(v)
hereof shall occur, or if it is necessary to supplement or amend the
Prospectuses to comply with the 1933 Act, the Canadian Securities Laws
or any other law, the Company will forthwith prepare and, subject to
the provisions of paragraph 7(iv) above, file with the SEC and the
Canadian Securities Authorities, as applicable, an appropriate
supplement or amendment thereto and will expeditiously furnish to the
Underwriters and dealers such number of copies thereof as the
Underwriters may reasonably request. In the event that the Company
and the Underwriters agree that the Prospectuses should be amended or
supplemented, the Company, if reasonably requested by the
Underwriters, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or
supplement; Alternatively, in the event that the material change is
adverse and is not related solely to the Underwriters (and in the
reasonable opinion of the Underwriters would be expected to have a
significant adverse effect on the market price or value of the Subject
Shares) and such change occurs prior to the Time of Closing, the
Underwriters may, within 48 hours from the time of notice of such
change, advise the Company that the Underwriters will decline to
participate in the filing of any such amendment and
<PAGE> 16
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thereupon the parties hereto shall be relieved of their respective
obligations under this Agreement. The Company shall in good faith
discuss with the Underwriters any change in circumstances (actual,
anticipated, contemplated or threatened) which is of such a nature
that there may be a reasonable doubt as to whether written notice need
be given to the Underwriters under the provisions of this section 7;
each delivery to the Underwriters made pursuant to this paragraph
7(vi) shall constitute consent by the Company to the use by the
Underwriters and other investment dealers and brokers of such
documents in connection with the offering of the Subject Shares for
sale in the United States and in all of the Canadian Jurisdictions,
subject to the provisions of the 1933 Act, the 1933 Act Regulations
and all relevant Canadian Securities Laws;
(vii) the Company will apply the net proceeds from the sale
of the Subject Shares to be sold by it hereunder substantially in
accordance with the description set forth under "Use of Proceeds" in
the Prospectuses;
(viii) the Company will make generally available to its
security holders (within the meaning of Rule 158 of the 1933 Act
Regulations) a consolidated earnings statement, which need not be
audited, covering a twelve-month period commencing after the effective
date of the Registration Statement and ending not later than 15 months
thereafter, as soon as reasonably practicable after the end of such
period, which consolidated earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act;
(ix) for a period of 90 days after the date of this
Agreement, the Company will not, without the prior written consent of
the Underwriters, offer, sell, contract to sell or otherwise dispose
of any shares of common stock (or any securities convertible into or
exercisable or exchangeable for shares of common stock) or grant any
options or warrants to purchase shares of common stock, provided,
however, that the Company may grant options to purchase shares of
common stock pursuant to the Company's equity incentive plans for
employees, officers, directors and consultants and may issue shares of
common stock pursuant to the exercise of options granted under the
Company's stock option plan, provided further, however, that the
Company may issue shares of its common stock to The Toronto Dominion
Bank in satisfaction of the equity participation right set forth in
the loan agreement between the Company and such bank;
(x) the Company will indemnify the Underwriters for
registration, issue, stamp, documentary, transfer or sales taxes that
they or any of them might be required to pay in respect of the issue,
sale or delivery of the Subject Shares to the Underwriters;
<PAGE> 17
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(xi) the Company has not taken and will not take, directly or
indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of the Subject Shares; and
(xii) The Company will use its best efforts to have the
Subject Shares listed, subject to notice of issuance, on The Nasdaq
National Market concurrently with the filing of the U.S. Final
Prospectus Supplement and on The Toronto Stock Exchange as soon as
reasonably possible thereafter.
8. The Company represents and warrants to the Underwriters that:
(i) the Company meets the requirements for use of Form S-3
under the 1933 Act Regulations. The Registration Statement as of the
Effective Date complied, and the U.S. Preliminary Prospectus complies
and the U.S. Prospectus as of its date and on the Closing Date will
comply, in all material respects with the applicable requirements of
the 1933 Act, the 1933 Act Regulations and the 1934 Act and the rules
thereunder; the Registration Statement does not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and each of the U.S. Preliminary Prospectus the U.S.
Prospectus (together with any amendment or supplement thereto) will
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not
misleading; provided, however, that the Company makes no
representations or warranties as to the information in such documents
relating solely to or provided in writing by the Underwriters;
(ii) the Company has complied and will comply, in each case
in all material respects, with all requirements of the 1933 Act and
the 1933 Act Regulations with respect to the preparation and filing of
the Registration Statement;
(iii) the Company is eligible to use the Multijurisdictional
Disclosure System provided for in NP 45 and at the respective times of
filing and at all times subsequent to the filing thereof during the
distribution of the Subject Shares, each of the Canadian Preliminary
Prospectus and the Canadian Prospectus complied or will comply with
the requirements of NP 45 and will not contain any misrepresentation
(as defined in the Securities Act (Ontario)); provided, however, that
the Company makes no representations or warranties as to the
information in such documents relating solely to or provided in
writing by the Underwriters;
(iv) The delivery by the Company to the Underwriters of each
of the Registration Statement, the U.S. Preliminary Prospectus
Supplement, the U.S. Prospectus Supplement
<PAGE> 18
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and any Prospectus Amendment pursuant to paragraph 7(vi) shall
constitute the Company's representation and warranty to the
Underwriters that, at the respective times of such delivery, the
information and statements contained therein (except information
relating solely to or provided in writing by the Underwriters) are
true and correct in all material respects and do not omit to state any
material fact which is necessary to make the statements therein not
misleading; and the delivery by the Company to the Underwriters of
each of the Canadian Preliminary Prospectus, the Canadian Prospectus
and any Prospectus Amendment pursuant to paragraph 7(vi) shall
constitute the Company's representation and warranty to the
Underwriters that, at the respective times of such delivery, the
information and statements contained and incorporated by reference
therein (except information and statements relating solely to the
Underwriters or provided in writing to the Company by the
Underwriters) are true and correct in all material respects, contain
no misrepresentation (as defined in the Securities Act (Ontario)) and
constitute full, true and plain disclosure of all material facts
relating to the Company and the Subsidiary taken as a whole and to the
Subject Shares and that no material fact has been omitted therefrom
which is necessary to make the statements therein not misleading in
light of the circumstances in which they were made;
(v) the Company has an authorized and, as at the date
indicated, outstanding share capital as set forth in the Prospectuses;
all the outstanding shares of common stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights; the Subject Shares
to be issued and sold by the Company have been duly authorized and,
when issued and delivered to the Underwriters against payment therefor
in accordance with the terms hereof, will be validly issued, fully
paid and non-assessable and free of any preemptive or similar rights;
and the capital stock of the Company conforms to the description
thereof in the Registration Statement and the Prospectuses;
(vi) Except as disclosed in the Registration Statement and
the Prospectuses (or any amendment or supplement thereto), subsequent
to the respective dates as of which such information is given in the
Registration Statement and the Prospectuses (or any amendment or
supplement thereto), there has been no change (actual, proposed or
prospective, whether financial or otherwise) in the business, affairs,
operations, assets, liabilities (contingent or otherwise) or capital
of the Company or the Subsidiary which may reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise), assets, liabilities, business, operations or capital of
the Company and the Subsidiary taken as a whole (a "Material Adverse
Effect"); and
(vii) the Company is a corporation duly organized and
existing under the laws of the state of Nevada with full corporate
power and corporate authority to own, lease and operate its properties
and assets and to conduct its business as presently conducted
<PAGE> 19
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and as described in the Registration Statement and the Prospectuses,
and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction where the nature of its properties
or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does
not and will not have a Material Adverse Effect;
(viii) the Subsidiary is a corporation duly organized,
validly existing and in good standing in the jurisdiction of its
incorporation, with full corporate power and corporate authority to
own, lease and operate its properties and to conduct its business as
presently conducted and described in the Registration Statement and
the Prospectuses, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where
the nature of its properties or assets or the conduct of its business
requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on
the condition (financial or other), business, prospects, properties,
net worth or results of operations of such Subsidiary; all the
outstanding shares of capital stock of the Subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable, and
are owned by the Company directly, free and clear of any lien, adverse
claim, security interest, equity or other encumbrance;
(ix) neither the issuance and sale of the Subject Shares, the
execution, delivery or performance of this Agreement by the Company
nor the consummation by the Company of the transactions contemplated
hereby (i) requires any consent, approval, authorization or other
order of or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official
(except such as may be required for the registration or qualification
of the Shares under the 1933 Act, the 1934 Act or Blue Sky laws of the
various states of the United States and other jurisdictions) or
conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, the certificate of incorporation or
bylaws, or other organizational documents, of the Company or the
Subsidiary or (ii) conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, any agreement,
indenture, lease or other instrument to which the Company or the
Subsidiary is a party or by which either of them or any of their
respective properties may be bound, or violates or will violate any
statute, law, regulation or filing or judgment, injunction, order or
decree applicable to the Company or the Subsidiary or either of their
respective properties, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or the Subsidiary pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of them may
be bound or to which any of the property or assets of any of them is
subject, in each case in a manner which would have a Material Adverse
Effect;
<PAGE> 20
- 20 -
(x) KPMG Peat Marwick LLP who have certified the financial
statements of the Company included in the Registration Statement and
the Prospectuses (or any amendment or supplement thereto), are, and
during the periods covered by its report were, auditors of the
Company, and are independent with respect to the Company within the
meaning of the Canadian Securities Laws, and are independent auditors
with respect to the Company as required by the 1933 Act;
(xi) the execution and delivery of, and the performance by
the Company of its obligations under this Agreement have been duly and
validly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and constitutes the valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except (i) the enforceability
hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, (ii) the remedy of
specific performance and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the
court before which the proceedings may be brought and (iii) rights to
indemnity and contribution hereunder or thereunder may be limited by
federal, provincial or state securities laws or the public policy
underlying such laws;
(xii) the Company and the Subsidiary each has such permits,
approvals, licenses, franchises and authorizations of governmental or
regulatory authorities ("Permits") as are necessary to own its
respective properties and to conduct its business in the manner
described in the Prospectuses, except where the failure to have any
such Permit would not have a Material Adverse Effect and subject to
such qualifications as may be set forth in the Prospectuses; the
Company and the Subsidiary each has fulfilled and performed all its
material obligations with respect to such Permits and no event has
occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such Permit, subject in
each case to such qualification as may be set forth in the
Prospectuses; and, except as described in the Prospectuses, none of
such Permits contains any restriction that is materially burdensome to
the Company or the Subsidiary in any manner different from other
companies in the same industry as the Company;
(xiii) the Company is not and, upon sale of the Subject
Shares to be issued and sold in accordance with this Agreement and
upon application of the net proceeds to the Company from such sale as
described in the Prospectuses under the caption "Use of Proceeds,"
will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
<PAGE> 21
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(xiv) the Company has filed in a timely manner each document
or report required to be filed by it pursuant to its continuous
reporting obligations under the 1934 Act and the rules and regulations
thereunder; each such document or report, together with any amendments
thereto, at the time it was filed conformed, as applicable, to the
requirements of the 1934 Act and the rules and regulations thereunder;
and none of such documents or reports contained an untrue statement of
any material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.;
(xv) the Company has complied with all provisions of Florida
Statutes, Section 517.075, relating to issuers doing business with
Cuba;
(xvi) except as disclosed in the Registration Statement and
the Prospectuses (or any amendment or supplement thereto) and except
as would not individually or in the aggregate have a Material Adverse
Effect, (i) the Company and the Subsidiary are each in compliance with
all applicable Environmental Laws (as hereafter defined), (ii) the
Company and the Subsidiary have all Permits, required under any
applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or threatened Environmental
Claims (as hereafter defined) against the Company or the Subsidiary,
and (iv) there are no circumstances known to the Company with respect
to any property or operations of the Company or its Subsidiary that
could reasonably be anticipated to form the basis of an Environmental
Claim against the Company or the Subsidiary. In addition, based upon
the Company's reviews, conducted in the ordinary course of its
business, of the effect of Environmental Laws on the business and
operations of the Company and the Subsidiary, the Company has
reasonably concluded that, except as disclosed in the Registration
Statement and the Prospectuses (or any amendment or supplement
thereto), the costs and liabilities under Environmental Laws
(including, without limitation, any capital or operating expenditures
required for clean-up, closure or rehabilitation of properties or
compliance with Environmental Laws or any Permit, any related
constraints on operating activities and potential liabilities to third
parties) would not, singularly or in the aggregate, have a Material
Adverse Effect.
For purposes of this subsection, the following terms have the
following meanings: "Environmental Law" means any United States (or
other applicable jurisdiction's) federal, provincial, state, local or
municipal statute, law, rule, regulation, ordinance, code, policy,
guideline or rule of common law and any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material, contaminant, waste or other
substance, exposure to which is prohibited, limited or regulated by
any governmental authority. "Environmental Claim" means any
administrative, regulatory or judicial action, suit, demand, demand
letter, claim, lien, notice of
<PAGE> 22
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noncompliance or violation, investigation or proceeding relating in
any way to any Environmental Law;
(xvii) The Subject Shares have received conditional approval
for listing, subject to official notice of issuance, on The Nasdaq
National Market;
9. Each of the Underwriters represents, warrants, covenants and
agrees to and with the Company that:
(i) each Canadian Underwriter shall offer the Subject Shares
for sale to the public, directly and through other investment dealers
and brokers in Canada or through its affiliated registered
broker-dealer in the United States, and each U.S. Underwriter shall
offer the Subject Shares for sale to the public directly and through
other broker dealers in the United States or through its affiliated
investment dealer or broker in Canada, as the case may be (the
"Selling Firms"), only as permitted by applicable law, and upon the
terms and conditions set forth in the Prospectuses and in this
Agreement. The Underwriters agree that they will not distribute the
Prospectuses or publish any prospectus, circular, advertisement or
other offering material in any jurisdiction other than the Canadian
Jurisdictions or the United States, in such manner as to require
registration of the Subject Shares or the filing of a prospectus or
any similar document with respect to the Subject Shares by the Company
therein and to require each of the other Selling Firms to agree not to
distribute the Subject Shares except as permitted by this Agreement.
For purposes of this paragraph, the Canadian Underwriters shall be
entitled to assume that the Subject Shares are qualified or registered
for distribution by duly qualified investment dealers and brokers in
any Canadian Jurisdiction where a receipt or similar document for the
Canadian Prospectus shall have been obtained from the applicable
securities regulatory authority following the filing of the Canadian
Prospectus.
(ii) The Underwriters agree between themselves and will
require each of the other Selling Firms to agree to comply with all
applicable requirements of Ontario Securities Commission Policy
Statement No. 5.1, Sections 11.11 and 11.26 of the rules of The
Toronto Stock Exchange, in connection with the distribution of the
Subject Shares and Rules 10b-6 and 10b-7 under the 1934 Act and the
rules of the National Association of Securities Dealers Inc.
(iii) Notwithstanding the foregoing provisions of this
section 9, an Underwriter will not be liable to the Company under this
section 9(a) with respect to a default by another Underwriter or
Selling Firm under this section 9 if the former Underwriter is not
also in default.
<PAGE> 23
- 23 -
10. The Underwriters shall have received at the Time of Closing on
the Closing Date or the Option Closing Date, as applicable, a certificate dated
the Closing Date or the Option Closing Date, as applicable, addressed to the
Underwriters and signed by any two senior officers of the Company reasonably
acceptable to the Underwriters, certifying for and on behalf of the Company to
the best of the knowledge, information and belief of the persons signing such
certificates after having made reasonable enquiries, to the effect that the
Company has complied with all covenants and satisfied all terms and conditions
of this Agreement on its part to be complied with and satisfied at or prior to
the Time of Closing on the Closing Date or the Option Closing Date, as
applicable; that, except as may have been the subject of a Prospectus Amendment
filed with the Canadian Securities Authorities and/or with the SEC pursuant to
clause 7(vi), there has been no material adverse change (actual, proposed or
prospective, whether financial or otherwise) in the business, affairs,
operations, assets, liabilities (contingent or otherwise) or capital of the
Company and its subsidiaries taken as a whole from the date hereof to the
Closing Date or the Option Closing Date, as applicable; that the
representations and warranties of the Company contained herein are true and
correct in all material respects as of the Time of Closing with the same force
and effect as if made at and as of the Time of Closing after giving effect to
the transactions contemplated hereby; that no stop order suspending the
effectiveness of the Registration Statement or the U.S. Prospectus, order
suspending the qualification for distribution of the Subject Shares in any
Canadian Jurisdiction, or order, ruling or determination having the effect of
ceasing or suspending trading in any securities of the Company, has been issued
and no proceedings for such purpose are pending or, to the knowledge of the
signers, contemplated or threatened; and that the representations and
warranties of the Company arising by reason of the delivery of the Prospectuses
are true and correct in all material respects as of the Time of Closing on the
Closing Date as if the Prospectuses had been delivered to the Underwriters and
dated the Closing Date or the Option Closing Date, as applicable.
11. (a) The Company covenants and agrees to protect and indemnify
each of the Underwriters, their respective directors, officers, employees and
agents and each person who controls any U.S. Dealer within the meaning of
Section 15 of the 1933 Act, against all losses, claims, damages, liabilities,
costs or expenses caused or incurred by reason of:
(i) any statement, other than any statement relating solely to the
Underwriters or provided in writing to the Company by the
Underwriters, contained in either the Canadian Preliminary
Prospectus or the Canadian Prospectus, or in any Prospectus
Amendment in respect thereof which at the time and in the
light of the circumstances under which it was made contains or
is alleged to contain a misrepresentation (as defined in the
Securities Act (Ontario)); or
(ii) the omission or alleged omission to state in either of the
Canadian Preliminary Prospectus, the Canadian Prospectus or
any Prospectus Amendment in respect
<PAGE> 24
- 24 -
thereof or any certificate of the Company or any officer
thereof delivered hereunder or pursuant hereto, any material
fact other than a material fact relating solely to the
Underwriters or provided in writing to the Company by the
Underwriters required to be stated therein or necessary to
make any statement therein not misleading in the light of the
circumstances under which it was made; or
(iii) any order made or inquiry, investigation or proceeding
commenced or threatened by any Canadian Securities Authority
(not based upon the activities of the Underwriters or their
banking or selling group members, if any) based upon any
untrue statement or omission or alleged untrue statement or
omission or any misrepresentation or alleged misrepresentation
in the Canadian Preliminary Prospectus, the Canadian
Prospectus or any Prospectus Amendment in respect thereof,
which prevents or restricts trading in the Subject Shares or
the distribution or distribution to the public, as the case
may be, of the Subject Shares in any of the Canadian
Jurisdictions; or
(iv) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally
filed or in any amendment thereof, or in any U.S. Preliminary
Prospectus or U.S. Prospectus, or in any amendment thereof or
supplement thereto, or 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;
provided that this indemnity does not apply to any loss,
claim, damage, liability, cost or expense to the extent
arising out of an untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company
by the Underwriters expressly for use in the Registration
Statement or the U.S. Prospectus (or any amendment or
supplement thereto);
and provided, further, that the foregoing indemnity agreements with respect to
any Preliminary Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
bought Subject Shares, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Subject
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities.
(b) If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against
<PAGE> 25
- 25 -
the Company, such Underwriter or such controlling person shall promptly notify
the Company, and the Company shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. Such Underwriter
or any such controlling person shall have the right to employ separate counsel
in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless (i) the Company has agreed
in writing to pay such fees and expenses, (ii) the Company has failed to assume
the defense and employ counsel, or (iii) the named parties to any such action,
suit or proceeding (including any impleaded parties) include both such
Underwriter or such controlling person and the Company and such Underwriter or
such controlling person shall have been advised by its counsel in writing that
representation of such indemnified party and the Company by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed) due
to actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling person). It is
understood, however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Nesbitt Burns Securities Inc., and
that all such fees and expenses shall be reimbursed as they are incurred. The
Company shall not be liable for any settlement of any such action, suit or
proceeding effected without its written consent, but if settled with such
written consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the Company agrees to indemnify and hold harmless
any Underwriter, to the extent provided in the preceding paragraph, and any
such controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Underwriter and its Affiliated Underwriter
covenants and agrees, severally and not jointly, to protect and indemnify the
Company, its directors, officers, employees and agents and each person who
controls the Company within the meaning of Section 15 of the 1933 Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with respect to information relating solely to the Underwriter or
furnished in writing by or on behalf of such Underwriter through Nesbitt Burns
Securities Inc. expressly for use in the Registration Statement, any Prospectus
or any Preliminary Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Company, any of its
directors, any such officer, or any such controlling person based on the
Registration Statement, any Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be
sought against any Underwriter pursuant to this paragraph (c), such Underwriter
shall have the rights and duties given to the Company by paragraph (b) above
(except that if the
<PAGE> 26
- 26 -
Company shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at such
Underwriter's expense), and the Company, its directors, any such officer, and
any such controlling person shall have the rights and duties given to the
Underwriters by paragraph (b) above.
(d) If the indemnification provided for in this Section 9
is unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other hand from the
offering of the Shares, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus; provided that, in the event that the
Underwriters shall have purchased any Option Shares hereunder, any
determination of the relative benefits received by the Company and the
Underwriters from the offering of the Shares shall include the net proceeds
(before deducting expenses) received by the Company, and the underwriting
discounts and commissions received by the Underwriters, from the sale of such
Option Shares, in each case computed on the basis of the respective amounts set
forth in the notes to the table on the cover page of the U.S. Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 9 were
determined by a pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (d)
above shall be deemed to include,
<PAGE> 27
- 27 -
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price of the
Shares underwritten by it and distributed to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in proportion
to the respective number of Firm Shares set forth opposite their names in
Section 17 herein and not joint.
(f) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or contribution
under this Section 9 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any person
controlling the Company, (ii) acceptance of any Subject Shares and payment
therefor hereunder, and (iii) any termination of this Agreement. A successor
to any Underwriter or any person controlling any Underwriter, or to the
Company, its directors or officers or any person controlling the Company, shall
be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 9.
12. The Company agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Canadian Securities Authorities and the SEC of the registration
statement (including financial statements and exhibits thereto), each of the
Preliminary Prospectuses, the Prospectuses, and each amendment or supplement to
any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight and delivery (including postage, air freight charges and
charges for counting and packaging)) of such copies of the registration
statement, each Preliminary Prospectus, the Prospectuses, and all amendments or
supplements to any of them as may be reasonably requested for use in connection
with the
<PAGE> 28
- 28 -
offering and sale of the Subject Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Subject Shares,
including any stamp taxes in connection with the original issuance and sale of
the Subject Shares; (iv) the printing (or reproduction) and delivery of this
Agreement, the preliminary and supplemental Blue Sky Memoranda and all other
agreements or documents printed (or reproduced) and delivered in connection
with the original issuance and sale of the Subject Shares; (v) the listing of
the Subject Shares on The Toronto Stock Exchange, and The Nasdaq National
Market; (vi) the registration or qualification of the Subject Shares for offer
and sale under the securities or Blue Sky laws of the several states as
provided in Section 7(vi) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the preparation,
printing or reproduction, and delivery of the preliminary and supplemental Blue
Sky Memoranda and such registration and qualification); (vii) the filing fees
and the fees and expenses of counsel for the Underwriters in connection with
any filings required to be made with the National Association of Securities
Dealers, Inc.; (viii) the transportation and other expenses incurred by or on
behalf of representatives of the Company in connection with presentations to
prospective purchasers of the Subject Shares; and (ix) the fees and expenses of
the Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company. Except as provided in Section 11 and
this Section 12, the Underwriters shall pay all of their own expenses,
including the fees and disbursements of their counsel (excluding fees related
to items (iv), (vi) and (vii) of this Section 12).
If this Agreement shall terminate or shall be terminated pursuant to any
provisions hereof (otherwise than pursuant to Section 15(b) hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Company to comply, in any material respect, with the
terms or fulfill any of the conditions of this Agreement other than by reason
of a default by the Underwriters, the Company agrees to reimburse the
Underwriters for all reasonable out-of-pocket expenses (including reasonable
fees and expenses of counsel for the Underwriters) incurred by you in
connection herewith. The Company shall not in any event be liable to any of
the Underwriters for the loss of anticipated profits from the transactions
covered by this Agreement.
13. The obligation of the Underwriters to purchase the Subject
Shares shall be subject to the accuracy of the representations and warranties
of the Company herein as of the Time of Closing and to the due fulfillment and
compliance in all material respects by the Company with its covenants herein
contained and to the condition that no stop order suspending the effectiveness
of the Registration Statement and no order ceasing trading in the Subject
Shares shall have been issued and no proceedings for either such purpose shall
have been instituted or threatened.
14. All warranties, representations, covenants and agreements of
the Company herein contained or contained in documents submitted pursuant to
this Agreement and in connection with the transaction of purchase and sale
herein contemplated shall survive the purchase of the
<PAGE> 29
- 29 -
Subject Shares and continue in full force and effect unaffected by any
subsequent disposition of the Subject Shares or any of them.
15. (a) All terms and conditions of this Agreement shall be construed
as conditions, and any material breach or failure by the Company to comply with
any such term or condition shall entitle the Underwriters to terminate their
obligation to purchase the Subject Shares by written notice to that effect
given to the Company prior to the Time of Closing on the Closing Date. It is
understood that the Underwriters may waive, in whole or in part, or extend the
time for, compliance with any of such terms and conditions without prejudice to
the rights of the Underwriters in respect of any other such term or condition
or any other or subsequent breach or non-compliance with that or any other term
or condition, provided that to be binding on the Underwriters any such waiver
or extension must be in writing.
(b) The obligations of each Underwriter contained in this
Agreement may also be terminated by such Underwriter in the event that prior to
the Time of Closing on the Closing Date.
(i) there should develop, occur or come into effect any
occurrence of national or international consequence or any action,
government regulation or inquiry which, in the reasonable opinion of
such Underwriter, seriously adversely affects, or will seriously
adversely affect, the financial markets in Canada or the United States
generally or the business of the Company; or
(ii) a banking moratorium is declared by any federal,
provincial or state authority in either Canada or the United States or
trading in securities generally on The Nasdaq Stock Market is
suspended; or
(iii) the state of the financial markets in the United States
or Canada is such that, in the reasonable opinion of the Underwriters,
or any of them, it would be impracticable to proceed with a public
offering of the Subject Shares;
then in either case the Underwriters (or any of them) may terminate their or
its obligations under this Agreement to purchase Subject Shares by written
notice to that effect (which notice shall specify the particular reason for the
termination) given to the Company prior to the Time of Closing on the Closing
Date.
(c) If any inquiry, investigation or other proceeding should be
made, threatened or announced or any order should be issued under or pursuant
to any statute of Canada or of any of the provinces comprising the Canadian
Jurisdictions or of the United States or by any official of any stock exchange
in Canada or the United States or by any other regulatory authority having
jurisdiction over a material portion of the business and affairs of the Company
or
<PAGE> 30
- 30 -
otherwise except for any such inquiry, investigation, proceeding or order based
upon the activities or the alleged activities of the Underwriters or their
banking or selling group and not of the Company, which in the reasonable
opinion of the Underwriters will prevent the distribution of the Subject Shares
in the Canadian Jurisdictions or in the United States or operate to prevent or
adversely restrict trading in Common Shares of the Company, Nesbitt Burns
Securities Inc., on behalf of the Underwriters shall be entitled, at its option
and in addition to any other remedies it might have, to terminate the
obligations of the Underwriters under this Agreement by written notice to that
effect given to the Company at or at any time prior to the Time of Closing on
the Closing Date.
16. If the Underwriters shall elect to terminate their obligation
to purchase the Subject Shares as aforesaid, whether the reason for such
termination is within or beyond the control of the Company, the liability of
the Company hereunder shall be limited to the indemnity referred to in section
10 and the payment of expenses referred to in section 11 to the extent provided
therein.
17. The obligation of each Underwriter to purchase the Subject
Shares at the Time of Closing shall be joint with the obligation of its
affiliated Underwriter, if any, set forth beside its name below (the
"Affiliated Underwriter") but shall be several and not joint with respect to
every other Underwriter and shall be as to the following percentages of the
Subject Shares to be purchased at that time:
<TABLE>
<CAPTION>
Affiliated U.S. Affiliated Canadian
Underwriter Underwriter
-------------- ----------------------
<S> <C> <C>
Nesbitt Burns Securities Inc. Nesbitt Burns Inc. 40%
Salomon Brothers Inc Salomon Brothers Canada Inc 25%
ScotiaMcLeod (USA) Inc. ScotiaMcLeod Inc. 12.5%
S.G.Warburg & Co. Inc. --- 12.5%
--- Toronto Dominion 10%
Securities Inc.
</TABLE>
No Underwriter shall be obligated to take up and pay for any
of the Subject Shares to be purchased by it unless the other Underwriters
simultaneously take up and pay for the percentage of Subject Shares set out
opposite their names above.
<PAGE> 31
- 31 -
If an Underwriter or its Affiliated Underwriter shall fail to
purchase their joint applicable percentage of the total number of Subject
Shares at the Time of Closing and such failure shall constitute a default in
its obligations under this Agreement, each of the Underwriters which shall be
willing and able to purchase its own applicable percentage of the total number
of Subject Shares shall be relieved of its obligations hereunder on submission
to the Company of reasonable evidence of ability and willingness to fulfil its
obligations hereunder at the Time of Closing, provided that, notwithstanding
the provisions of this Section 17, the Underwriters which shall be willing and
able to purchase their respective applicable percentage of the total number of
Subject Shares may, but shall not be obligated to, purchase the total number of
Subject Shares in such proportion as may be agreed upon by the Underwriters
which are so willing and able.
18. The Underwriters and any members of their banking or their
selling groups may resell the Subject Shares to the public in compliance with
applicable laws and shall offer the Subject Shares only in those jurisdictions
where they may lawfully be offered for sale at prices not exceeding the initial
offering price. The Underwriters shall, after the Time of Closing, use their
reasonable best efforts (taking into account the respective interest of both
the Company and the Underwriters) to terminate and to cause members of any
banking or selling group to terminate, distribution of the Subject Shares as
promptly as possible after the Closing Date. The Underwriters shall give
prompt notice to the Company when, in the opinion of the Underwriters,
distribution has ceased, and shall also give notice to the Company of the
amount of Subject Shares distributed in each province. The Underwriters will
allow the Company to review any sales memoranda for use by their employee, in
connection with the marketing of the Subject Shares prior to any use thereof
and prior to such memoranda being filed with any Canadian regulatory authority.
19. In all dealings hereunder, the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by the Underwriters jointly or by
Nesbitt Burns Securities Inc. on behalf of the Underwriters.
20. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be delivered in the case of the
Company at its address on page 1 hereof with a copy to Latham & Watkins, 505
Montgomery Street, San Francisco, California 94111, Attention: Christopher L.
Kaufman, and in the case of the Underwriters as follows:
<PAGE> 32
- 32 -
(i) if to Nesbitt Burns Securities Inc. and/or Nesbitt Burns Inc.
To: Nesbitt Burns Inc.
4th Floor
1 First Canadian Place
Toronto, Ontario
M5X 1H3
Attention: Carl Renzoni
(ii) if to Salomon Brothers Inc and/or Salomon Brothers Canada Inc
To: Salomon Brothers Inc
Corporate Finance Division
8700 Sears Tower
Chicago, Illinois 60606
Attention: R. Stribling Koster
(iii) if to ScotiaMcLeod (USA) Inc. and/or ScotiaMcLeod Inc.
To: ScotiaMcLeod Inc.
40 King Street West
66th Floor
Toronto, Ontario
M5W 2X6
Attention: David Pyper
(iv) if to S.G.Warburg & Co. Inc.
To: S.G.Warburg & Co. Inc.
277 Park Avenue
New York, New York
Attention: Ralph Eads
(v) if to Toronto Dominion Securities Inc.
To: Toronto Dominion Securities Inc.
222 Bay Street, 20th Floor
Toronto, Ontario
M5K 1A2
Attention: Thomas R. Kennedy
<PAGE> 33
- 33 -
21. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND TIME SHALL BE OF THE
ESSENCE HEREOF.
22. The invalidity or unenforceability of any Section, paragraph
or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph
or provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
23. This Agreement may be executed in several counterparts which,
taken together, shall constitute one and the same instrument.
<PAGE> 34
If this letter accurately reflects the terms of the
transaction which we are to enter into and if such terms are agreed to by the
Company, please communicate acceptance of the Company by executing and
returning 6 copies of this letter where indicated below.
Yours very truly,
NESBITT BURNS INC. NESBITT BURNS SECURITIES INC.
by by
------------------------------- ----------------------------------
SALOMON BROTHERS INC SALOMON BROTHERS CANADA INC
by by
------------------------------- ----------------------------------
SCOTIAMCLEOD INC. SCOTIAMCLEOD (USA) INC.
by by
------------------------------- ----------------------------------
S.G.WARBURG & CO. INC. TORONTO DOMINION SECURITIES INC.
by by
------------------------------- ----------------------------------
The foregoing accurately reflects the terms of the transaction
which we are to enter into and such terms are agreed to by FirstMiss Gold Inc.
DATED the 15th day of November, 1995.
FIRSTMISS GOLD INC.
by
----------------------------------
<PAGE> 1
[LATHAM & WATKINS LETTERHEAD]
November 15, 1995
FirstMiss Gold, Inc.
5460 South Quebec Street, Suite 240
Englewood, Colorado 80111
Re: Registration Statement No. 33-62449
7,475,000 Shares of Common Stock
Ladies/Gentlemen:
In connection with the registration statement on Form S-3 (File No.
33-62449) filed by FirstMiss Gold Inc., a Nevada corporation (the "Company"),
with the Securities and Exchange Commission (the "Commission") on September 8,
1995, as amended by Amendment No. 1 filed with the Commission on October 18,
1995 and Amendment No. 2 filed with the Commission on November 1, 1995
(collectively, the "Registration Statement"), and the issuance of 7,475,000
shares of common stock of the Company, par value $.01 per share (the "Shares"),
registered under the Registration Statement and offered pursuant to a
prospectus supplement relating to the Shares dated November 15, 1995 (the
"Prospectus Supplement") which supplements the prospectus contained in the
Registration Statement, you have requested our opinion with respect to the
matters set forth below.
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization, issuance and sale of the Shares,
and for the purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
<PAGE> 2
FirstMiss Gold Inc.
November 15, 1995
Page 2
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents submitted
to us as copies.
We are opining herein as to the effect on the subject transaction only
of the federal securities laws of the United States and the internal laws of
the State of California, and we express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or as to any matters of municipal law or the laws of any other
local agencies within any state.
Subject to the foregoing, it is our opinion that upon issuance,
delivery and payment therefor in the manner contemplated by the Prospectus
Supplement, the Shares will be validly issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Prospectus included therein.
Very truly yours,
LATHAM & WATKINS
<PAGE> 1
EXHIBIT 5(b)
[MARSHALL HILL CASSAS & de LIPKAU LETTERHEAD]
November 15, 1995
FirstMiss Gold Inc.
5460 South Quebec Street, Suite 240
Englewood, Colorado 80111
Re: Registration Statement No. 33-62449
7,475,000 Shares of Common Stock
Ladies/Gentlemen:
In connection with the registration statement on Form S-3 (File No.
33-62449) filed by FirstMiss Gold Inc., a Nevada corporation (the "Company"),
with the Securities and Exchange Commission (the "Commission") on September 8,
1995, as amended by Amendment No. 1 filed with the Commission on October 18,
1995 and Amendment No-2 filed with the Commission on November 1, 1995
(collectively, the "Registration Statement."), and the issuance of 7,475,000
shares of common stock of the Company, par value $.01 per share (the "Shares"),
registered under the Registration Statement and offered pursuant to a prospectus
supplement relating to the Shares dated November 15, 1995 (the "Prospectus
Supplement") which supplements the prospectus contained in the Registration
Statement, you have requested our opinion with respect to the matters set
forth below.
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization, issuance and sale of the Shares,
and for the purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction or
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
<PAGE> 2
FirstMiss Gold Inc.
November 15,1995
Page 2
We are opining herein as to the effect on the subject transaction only
of the General Corporation Law of the State of Nevada, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of
the laws of any other jurisdiction or as to any matters of municipal law or the
laws of any other local agencies within any state.
Subject to the foregoing, it is our opinion that upon issuance,
delivery and payment therefor in the manner contemplated by the Prospectus
Supplement, the Shares will be validly issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ MARSHALL HILL CASSAS & de LIPKAU
MARSHALL HILL CASSAS & de LIPKAU
DSM:dm
