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UNITED STATES
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: November 8, 2024
(Date of earliest
event reported)
VISTA GOLD CORP.
(Exact
Name of Registrant as Specified in Charter)
British Columbia, Canada
(State or Other Jurisdiction
of Incorporation)
1-9025
(Commission File Number) |
Not Applicable
(IRS Employer Identification No.) |
8310 S VALLEY HWY, suite 300, ENGLEWOOD, colorado 80112
(Address of Principal Executive Offices
and Zip Code)
Registrant’s telephone number, including area code: (720) 981-1185
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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|
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Shares |
VGZ |
NYSE American |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ¨
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive Agreement
On November 8, 2024, Vista Gold Corp. (the “Company”)
entered into an At-the-Market Offering Agreement (the “ATM Agreement”) with H.C. Wainwright & Co., LLC (“Wainwright”)
as sales manager. Under the terms of the ATM Agreement, the Company will be entitled to sell, at its sole discretion and from time to
time as it may choose,
common shares in the capital of the Company (“Shares”)
through Wainwright, with such sales having an aggregate gross sales value of up to US$8.0 million (the “Offering”). The ATM
Agreement will remain in full force and effect until the date that the ATM Agreement is terminated in accordance with the terms therein.
Subject to the terms and conditions of the Agreement,
H.C. Wainwright will use its commercially reasonable efforts to sell the Shares from time to time, based upon the Company’s instructions.
The Company has provided H.C. Wainwright with customary indemnification rights, and H.C. Wainwright will be entitled to a commission at
a commission rate of up to 3.0% of the gross sales price of the Shares sold.
Sales of the Shares, if any, under the Agreement
may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the Securities Act
of 1933, as amended (the “Securities Act”), including sales made by means of ordinary brokers’ transactions, including
on the NYSE American, LLC, at market prices or as otherwise agreed with H.C. Wainwright. The Company has no obligation to sell any of
the Shares, and may at any time suspend offers under the Agreement or terminate the Agreement. Under the Offering, no offers or sales
of Shares will be made in Canada, including through the Toronto Stock Exchange (the “TSX”) or other trading markets in Canada.
This report also incorporates by reference the
ATM Agreement into the shelf registration statement on Form S-3 (File No. 333-282706) previously filed with the Securities and Exchange
Commission on October 17, 2024 (the “Registration Statement”). This report shall not constitute an offer to sell or the solicitation
of an offer to buy nor shall there be any sale of the Shares in any state in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such state.
The ATM Agreement is filed as Exhibit 10.1 to
this report. The description of the ATM Agreement does not purport to be complete and is qualified in its entirety by reference to the
ATM Agreement filed herewith as an exhibit to this report.
The opinion of the Company’s counsel regarding
the validity of the Shares that will be issued pursuant to the Agreement is also filed herewith as Exhibit 5.1. This opinion is also filed
with reference to, and is hereby incorporated by reference into, the Registration Statement.
Item 7.01 Regulation FD Disclosure
On November 8, 2024, the Company issued a press
release announcing the ATM Agreement and the at-the-market equity program. A copy of the press release is furnished herewith as Exhibit
99.1.
The information furnished pursuant to Item 7.01,
including Exhibit 99.1, shall not be deemed “filed” for the purposes of Section 18 of the Exchange Act and will not be deemed
to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent
that the Company specifically incorporates it by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
* The foregoing Exhibits are hereby incorporated
by reference into the Registrant’s Registration Statement on Form S-3 (File No. 333-282706), filed with the SEC on October 17, 2024
pursuant to the United States Securities Act of 1933, as amended.
SIGNATURES
In accordance with the requirements of the Securities
and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
VISTA GOLD CORP. (Registrant) |
|
|
Dated: November 8, 2024 |
By: |
/s/ Frederick H. Earnest |
|
Frederick H. Earnest |
|
President Chief Executive Officer |
Exhibit 99.1
AT THE MARKET OFFERING AGREEMENT
November 8,
2024
H.C. Wainwright & Co., LLC
430 Park Avenue
New York, New York 10022
Ladies and
Gentlemen:
Vista Gold Corp., a corporation
incorporated under the laws of the Province of British Columbia, Canada (the “Company”), confirms its agreement (this
“Agreement”) with H.C. Wainwright & Co., LLC (the “Manager”) as follows:
1.
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants” shall
have the meaning ascribed to such term in Section 4(m).
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action”
shall have the meaning ascribed to such term in Section 3(p).
“Affiliate”
shall have the meaning ascribed to such term in Section 3(o).
“Applicable
Time” shall mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement or any relevant Terms
Agreement.
“Base Prospectus”
shall mean the base prospectus contained in the Registration Statement at the Execution Time.
“Board”
shall have the meaning ascribed to such term in Section 2(b)(iii).
“Broker
Fee” shall have the meaning ascribed to such term in Section 2(b)(v).
“Business
Day” shall mean any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are
authorized or required by law to remain closed; provided, however, that, for purposes of clarity, commercial banks
shall not be deemed to be authorized or required by law to remain closed due to “stay at home”,
“shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the
closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer
systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such
day.
“Commission”
shall mean the United States Securities and Exchange Commission.
“Common
Shares” shall have the meaning ascribed to such term in Section 2.
“Common
Share Equivalents” shall have the meaning ascribed to such term in Section 3(g).
“Company
Counsel” shall have the meaning ascribed to such term in Section 4(l).
“DTC”
shall have the meaning ascribed to such term in Section 2(b)(vii).
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became
or becomes effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Free Writing
Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“GAAP”
shall have the meaning ascribed to such term in Section 3(m).
“Incorporated
Documents” shall mean the documents or portions thereof filed with the Commission on or before the Effective Date that are incorporated
by reference in the Registration Statement or the Prospectus and any documents or portions thereof filed with the Commission after the
Effective Date that are deemed to be incorporated by reference in the Registration Statement or the Prospectus.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3(v).
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Losses”
shall have the meaning ascribed to such term in Section 7(d).
“Material
Adverse Effect” shall have the meaning ascribed to such term in Section 3(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3(t).
“Net Proceeds”
shall have the meaning ascribed to such term in Section 2(b)(v).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4(g).
“Placement”
shall have the meaning ascribed to such term in Section 2(c).
“Proceeding”
shall have the meaning ascribed to such term in Section 3(b).
“Prospectus”
shall mean the Base Prospectus, as supplemented by the most recently filed Prospectus Supplement.
“Prospectus
Supplement” shall mean each prospectus supplement relating to the Shares prepared and filed pursuant to Rule 424(b) from
time to time.
“Registration
Statement” shall mean the shelf registration statement (File No. 333-282706) on Form S-3, including exhibits and financial
statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed
part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective
amendment thereto becomes effective, shall also mean such registration statement as so amended.
“Representation
Date” shall have the meaning ascribed to such term in Section 4(k).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3(e).
“Rule 158”,
“Rule 164”, “Rule 172”, “Rule 173”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433”
refer to such rules under the Act.
“Sales
Notice” shall have the meaning ascribed to such term in Section 2(b)(i).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3(m).
“Settlement
Date” shall have the meaning ascribed to such term in Section 2(b)(vii).
“Subsidiary”
shall have the meaning ascribed to such term in Section 3(a).
“Terms
Agreement” shall have the meaning ascribed to such term in Section 2(a).
“Time of
Delivery” shall have the meaning ascribed to such term in Section 2(c).
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means whichever of the NYSE American, the New York Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Global
Market or the Nasdaq Capital Market on which the Common Shares listed or quoted for trading on the date in question.
“TSX”
means the Toronto Stock Exchange.
2.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Manager, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, up to such number of common shares, no par value,
of the Company (“Common Shares” and such Common Shares to be issued and sold pursuant to this Agreement, the “Shares”),
that does not exceed (a) the number or dollar amount of Common Shares registered on the Prospectus Supplement, pursuant to which the offering
is being made, (b) the number of authorized but unissued Common Shares (less the number of Common Shares issuable upon exercise, conversion
or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital stock), or
(c) the number or dollar amount of Common Shares that would cause the Company or the offering of the Shares to not satisfy the eligibility
and transaction requirements for use of Form S-3, including, if applicable, General Instruction I.B.6 of Registration Statement on Form
S-3 (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein,
the parties hereto agree that compliance with the limitations set forth in this Section 2 on the number and aggregate sales price of Shares
issued and sold under this Agreement shall be the sole responsibility of the Company and that the Manager shall have no obligation in
connection with such compliance.
(a) Appointment
of Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Manager, the Company hereby
appoints the Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant to this
Agreement and the Manager agrees to use its commercially reasonable efforts to sell the Shares on the terms and subject to the
conditions stated herein. The Company agrees that, whenever it determines to sell the Shares directly to the Manager as principal,
it will enter into a separate agreement (each, a “Terms Agreement”) in substantially the form of Annex I
hereto, relating to such sale in accordance with Section 2 of this Agreement.
(b)
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth,
the Company will issue and agrees to sell Shares from time to time through the Manager, acting as sales agent, and the Manager agrees
to use its commercially reasonable efforts to sell, as sales agent for the Company, on the following terms:
(i) The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Manager on any day that (A) is
a Trading Day, (B) the Company has instructed the Manager by telephone (confirmed promptly by electronic mail) to make such sales
(“Sales Notice”) and (C) the Company has satisfied its obligations under Section 6 of this Agreement. The Company will
designate the maximum amount of the Shares to be sold by the Manager daily (subject to the limitations set forth in Section 2(d)) and
the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Manager shall use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell on a particular day all of the Shares designated for
the sale by the Company on such day. The gross sales price of the Shares sold under this Section 2(b) shall be the market price for
the Common Shares sold by the Manager under this Section 2(b) on the Trading Market at the time of sale of such Shares.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Manager will be successful in selling the
Shares, (B) the Manager will incur no liability or obligation to the Company or any other person or entity if it does not sell the
Shares for any reason other than a failure by the Manager to use its commercially reasonable efforts consistent with its normal trading
and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the Manager
shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically agreed
by the Manager and the Company pursuant to a Terms Agreement.
(iii) The
Company shall not authorize the issuance and sale of, and the Manager shall not be obligated to use its commercially reasonable
efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s
Board of Directors (the “Board”), or a duly authorized committee thereof, or such duly authorized officer of the
Company, and notified to the Manager in writing. The Company or the Manager may, upon notice to the other party hereto by telephone
(confirmed promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however,
that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares
sold hereunder prior to the giving of such notice.
(iv)
The Manager may sell Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415
under the Act, including without limitation sales made directly on the Trading Market, on any other existing trading market for the Common
Shares or to or through a market maker, provided, however, that in no case will the Manager sell the Shares on the TSX, in Canada or any
of its provinces or territories, or on any other existing trading market for the Common Shares outside of the United States. The Manager
may also sell Shares in privately negotiated transactions, provided that the Manager receives the Company’s prior written approval
for any sales in privately negotiated transactions and if so provided in the “Plan of Distribution” section of the Prospectus
Supplement or a supplement to the Prospectus Supplement or a new Prospectus Supplement disclosing the terms of such privately negotiated
transaction.
(v)
The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of up to 3.0% of the gross
sales price of the Shares sold pursuant to this Section 2(b) (“Broker Fee”). The foregoing rate of compensation shall
not apply when the Manager acts as principal, in which case the Company may sell Shares to the Manager as principal at a price agreed
upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and deduction
of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in respect of
such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi)
The Manager shall provide written confirmation (which may be by facsimile or electronic mail) to the Company following the close
of trading on the Trading Market each day in which the Shares are sold under this Section 2(b) setting forth the number of the Shares
sold on such day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company
to the Manager with respect to such sales.
(vii) Unless
otherwise agreed between the Company and the Manager, settlement for sales of the Shares will occur at or prior to 1:00 p.m. (New
York City time) on the first (1st) Trading Day (or any such shorter
settlement cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange Act from time to time) following the date on
which such sales are made (each, a “Settlement Date”). On or before the Settlement Date, the Company will, or
will cause its transfer agent to, electronically transfer the Shares being sold by crediting the Manager’s or its
designee’s account (provided that the Manager shall have given the Company written notice of such designee at least one
Trading Day prior to the Settlement Date) at The Depository Trust Company (“DTC”) through its Deposit and
Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which Shares
in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the
Manager will deliver the related Net Proceeds in same day funds to an account designated by the Company. The Company agrees that, if
the Company, or its transfer agent (if applicable), defaults in its obligation to deliver duly authorized Shares on a Settlement
Date, in addition to and in no way limiting the rights and obligations set forth in Section 7 hereto, the Company will (i) hold the
Manager harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable and documented legal fees
and expenses), as incurred, arising out of or in connection with such default by the Company, and (ii) pay to the Manager any
commission, discount or other compensation to which the Manager would otherwise have been entitled absent such default.
(viii)
At each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation
and warranty contained in this Agreement as if such representation and warranty were made as of such date (except to the extent that any
such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and
correct as of such date), modified as necessary to relate to the Registration Statement and the Prospectus as amended or supplemented
as of such date. Any obligation of the Manager to use its commercially reasonable efforts to sell the Shares on behalf of the Company
shall be subject to the continuing accuracy of the representations and warranties of the Company herein, to the performance by the Company
of its obligations hereunder and to the continuing satisfaction of the additional conditions specified in Section 6 of this Agreement.
(ix) If
the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of
Common Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or
other similar transaction) (a “Distribution” and the record date for the determination of shareholders entitled
to receive the Distribution, the “Record Date”), the Company hereby covenants that, in connection with any sales
of Shares pursuant to a Sales Notice on the Record Date, the Company shall issue and deliver such Shares to the Manager on the
Record Date and the Record Date shall be the Settlement Date and the Company shall cover any additional costs of the Manager in
connection with the delivery of Shares on the Record Date.
(c)
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in Section
2(b) of this Agreement (each, a “Placement”), the Company will notify the Manager of the proposed terms of such Placement.
If the Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in its sole discretion)
or, following discussions with the Company wishes to accept amended terms, the Manager and the Company will enter into a Terms Agreement
setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on the Company or the Manager
unless and until the Company and the Manager have each executed such Terms Agreement accepting all of the terms of such Terms Agreement.
In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will
control. A Terms Agreement may also specify certain provisions relating to the reoffering of such Shares by the Manager. The commitment
of the Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth, except as may be otherwise
set forth in the Terms Agreement. Each Terms Agreement shall specify the number of the Shares to be purchased by the Manager pursuant
thereto, the price to be paid to the Company for such Shares, the compensation to be paid to the Manager in relation to the purchase of
such Shares, any provisions relating to rights of, and default by, underwriters acting together with the Manager in the reoffering of
the Shares, if applicable, and the time and date (each such time and date being referred to herein as a “Time of Delivery”)
and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify any requirements for opinions of counsel,
accountants’ letters and officers’ certificates pursuant to Section 6 of this Agreement and any other information or documents
reasonably required by the Manager in relation to such Placement.
(d) Maximum
Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if, after giving
effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser of (A)
together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the
currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this
Agreement by the Board, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Manager in
writing. Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a
price lower than the minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly
authorized executive officer, and notified to the Manager in writing. Further, under no circumstances shall the Company cause or
permit the aggregate offering amount of Shares sold pursuant to this Agreement to exceed the Maximum Amount.
(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange
Act are satisfied with respect to the Shares, the Company shall give the Manager at least one (1) Trading Day’s prior notice of
its intent to sell any Shares in order to allow the Manager time to comply with Regulation M.
3.
Representations and Warranties. The Company represents and warrants to, and agrees with, the Manager at the Execution Time
and on each such time that the following representations and warranties are repeated or deemed to be made pursuant to this Agreement,
as set forth below, in each case except as set forth in the Registration Statement, the Prospectus or the Incorporated Documents.
(a)
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company
are set forth on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filed with the Commission. The Company owns,
directly or indirectly, all of the shares or other equity interests of each Subsidiary free and clear of any “Liens”
(which for purposes of this Agreement shall mean a lien, charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction), and all of the issued and outstanding shares or other equity interests of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing (or its foreign equivalent) under the laws of the jurisdiction of its incorporation or organization
(as applicable), with the requisite power and authority to own and use its properties and assets and to carry on its business as
currently conducted. Neither the Company nor any Subsidiary is in violation nor in default of any of the provisions of its
respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and
the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where
the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a
material adverse effect on the legality, validity or enforceability of this Agreement, (ii) a material adverse change in the results
of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a
whole, from that set forth in the Registration Statement, the Base Prospectus, any Prospectus Supplement, the Prospectus or the
Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a
timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no
“Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation or
proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced
or threatened) has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail
such power and authority or qualification.
(c)
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s shareholders in connection
herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered by the Company and,
when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited
by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and the
consummation by it of the transactions contemplated herein do not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt
or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to
which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property
or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
“Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture,
limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind, including
the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement, other than (i) the filings
required by this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing of application(s) to and
approval by the Trading Market and the TSX for the listing of the Shares for trading thereon in the time and manner required thereby,
and (iv) such filings as are required to be made under applicable state securities laws and the rules and regulations of the Financial
Industry Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required Approvals”).
(f)
Issuance of Shares. The Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will
be duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company. The issuance by the Company
of the Shares has been registered under the Act and all of the Shares are freely transferable and tradable by the purchasers thereof without
restriction (other than any restrictions arising solely from an act or omission of such a purchaser). The “Plan of Distribution”
section within the Prospectus contained in the Registration Statement, as supplemented by the Prospectus Supplement, permits the issuance
and sale of the Shares as contemplated by this Agreement. Upon receipt of the Shares, the purchasers of such Shares will have good and
marketable title to such Shares and the Shares will be freely tradable on the Trading Market.
(g) Capitalization.
The capitalization of the Company is as set forth in the Registration Statement and Prospectus. The Company has not issued any
shares since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock
options under the Company’s stock option plans (“Stock Option Plans”), the issuance of Common Shares upon
the vesting of restricted stock units under the Company’s long term incentive plan (“LTIP”), the issuance
of Common Shares upon the vesting of deferred stock units under the Company’s deferred stock unit plan (“DSU
Plan”), the issuance of Common Shares to employees pursuant to the Company’s employee stock purchase plan
(“ESPP”, together with Stock Option Plans, the LTIP and the DSU Plan, the “Company Equity Compensation
Plans”) and pursuant to the conversion and/or exercise of securities exercisable, exchangeable or convertible into Common
Shares (“Common Share Equivalents”) outstanding as of the date of the most recently filed periodic report under
the Exchange Act or as set forth in the SEC Reports. No Person has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the transactions contemplated by this Agreement. Except (i) pursuant to the
Company Equity Compensation Plans, as set forth in the SEC Reports, and (ii) pursuant to agreements or instruments filed as exhibits
to the Incorporated Documents, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or
giving any Person any right to subscribe for or acquire, any Common Shares or the capital stock of any Subsidiary, or contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional Common
Shares or Common Share Equivalents or capital stock of any Subsidiary. The issuance and sale of the Shares will not obligate the
Company or any Subsidiary to issue Common Shares or other securities to any Person. Except as set forth in the SEC Reports, there
are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise,
conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary.
Except as set forth in the SEC Reports, there are no outstanding securities or instruments of the Company or any Subsidiary that
contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the
Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. Except as set forth in the
SEC Reports, the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any
similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully
paid and nonassessable, have been issued in compliance with all applicable federal, Canadian, provincial and state securities laws,
and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase
securities. Other than the Required Approvals, no further approval or authorization of any shareholder, the Board or others is
required for the issuance and sale of the Shares. There are no shareholders agreements, voting agreements or other similar
agreements with respect to the Company’s shares to which the Company is a party or, to the knowledge of the Company, between
or among any of the Company’s shareholders.
(h) Registration
Statement. The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the
Commission the Registration Statement, including a related Base Prospectus, for registration under the Act of the offering and sale
of the Shares. The Registration Statement is effective and available for the offer and sale of the Shares as of the date hereof. As
filed, the Base Prospectus contains all information required by the Act and the rules and regulations thereunder, and, except to the
extent the Manager shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the
Manager prior to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The Registration
Statement, at the Execution Time, each such time this representation is repeated or deemed to be made, and at all times during which
a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172, 173 or any similar
rule) in connection with any offer or sale of the Shares, meets the requirements set forth in Rule 415(a)(1)(x). The initial
Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time. The Company meets
the transaction requirements as set forth in General Instruction I.B.1 of Form S-3 or, if applicable, as set forth in General
Instruction I.B.6 of Form S-3 with respect to the aggregate market value of securities being sold pursuant to this offering and
during the twelve (12) months prior to such time that this representation is repeated or deemed to be made.
(i)
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules and regulations thereunder, and none of the Incorporated Documents,
when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in light of the circumstances under which they were made not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus, when
such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules
and regulations thereunder, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(j)
Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution
Time and on each such time this representation is repeated or deemed to be made (with such date being used as the determination date for
purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible
Issuer.
(k) Free
Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus does
not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any Prospectus Supplement deemed to be a part thereof that has not been superseded or modified; and
each Issuer Free Writing Prospectus does not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by the Manager specifically for use therein. Any Issuer Free Writing Prospectus
that the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the
requirements of the Act and the rules and regulations thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or
is required to file, pursuant to Rule 433(d) or that was prepared by or behalf of or used by the Company complies or will comply in
all material respects with the requirements of the Act and the rules and regulations thereunder. The Company will not, without the
prior consent of the Manager, prepare, use or refer to, any Issuer Free Writing Prospectuses.
(l) Proceedings
Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d)
or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection with the
offering of the Shares. The Company has not received any notice that the Commission has issued or intends to issue a stop-order with
respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(m)
SEC Reports. The Company has complied in all material respects with requirements to file all reports, schedules, forms,
statements and other documents required to be filed by the Company under the Act and the Exchange Act, including pursuant to Section 13(a)
or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation
to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together
with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a
timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any
such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the
Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading..
(n) Financial Statements. The consolidated financial statements of the Company incorporated by reference in the Registration
Statement, the Prospectus, or the Incorporated Documents and any amendments thereof or supplements thereto comply in all material respects
with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time
of filing or as amended or corrected in a subsequent filing. Such financial statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except
as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated
Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(o)
Accountants. The Company’s accounting firm is set forth in the Registration Statement and Prospectus. To the knowledge
and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall
express its opinion with respect to the financial statements to be included in the Company’s next Annual Report on Form 10-K.
(p) Material
Adverse Events; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date on which this representation
is being made, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in
a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or not required to be disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of
cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of capital
stock, (v) the Company has not issued any equity securities to any officer, director or “Affiliate” (defined as any
Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with
a Person, as such terms are used in and construed under Rule 144 under the Act), except pursuant to existing Company Equity Compensation
Plans, and (vi) no executive officer of the Company or member of the Board has resigned from any position with the Company. The Company
does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Shares
contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably
expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations,
assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this
representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation
is deemed made.
(q)
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, Proceeding or
investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (Canadian, provincial,
federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the
legality, validity or enforceability of this Agreement or the Shares or (ii) could, if there were an unfavorable decision, have or reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor, to the knowledge of the Company, any
director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or
state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending
or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company.
The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company
or any Subsidiary under the Exchange Act or the Act.
(r)
Labor Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of
the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or
its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary,
and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries
believe that their relationships with their employees are good. No executive officer, to the knowledge of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters, except as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company and its Subsidiaries are in compliance with all applicable Canadian, provincial, U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and
hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(s)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all Canadian, provincial, U.S. federal, state, local and foreign laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could
not have or reasonably be expected to result in a Material Adverse Effect.
(t)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface
or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(u) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate Canadian,
provincial, U.S. federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as currently
conducted and as described in the Registration Statement and Prospectus, except where the failure to possess such permits could not reasonably
be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary
has received any notice of proceedings relating to the revocation or modification of any Material Permit.
(v)
Title to Assets. Except as disclosed in the Registration Statement and Prospectus, the Company and the Subsidiaries have
good and marketable title in fee simple to all real property owned by them that is material to the business of the Company and the Subsidiaries
and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of Canadian, provincial, U.S. federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with
GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries
are in compliance, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect.
(w)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or material for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have could reasonably be expected to have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included
within the SEC Reports, a notice (written or otherwise) of a claim or otherwise has any knowledge that the Intellectual Property Rights
violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect.
To the knowledge of the Company, all Intellectual Property Rights are enforceable and there is no existing infringement by another Person
of any of the Intellectual Property Rights.
(x)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary for companies of similar size as the Company in the businesses in which
the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage. To the knowledge
of the Company, such insurance contracts, and policies are accurate and complete. Neither the Company nor any Subsidiary has any reason
to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business without a significant increase in cost.
(y) Affiliate
Transactions. Except as set forth in the Registration Statement and Prospectus, none of the officers or directors of the Company
or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party
to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of
$120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on
behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the
Company or any restricted stock or restricted stock units under the LTIP.
(z) Sarbanes
Oxley Compliance. Except as disclosed in the Registration Statement and Prospectus, the Company and the Subsidiaries are in
compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date
hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date
hereof. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization,
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls
and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and
forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the
Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act
(such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the
Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on
their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over
financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected,
or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(aa)
Certain Fees. Other than payments to be made to the Manager, no brokerage or finder’s fees or commissions are or will
be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this Agreement. The Manager shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may
be due in connection with the transactions contemplated by this Agreement.
(bb)
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of at the market offerings of the Shares.
(cc)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Manager in connection with the Shares.
(dd)
Listing and Maintenance Requirements. The Common Shares are listed on the Trading Market and the TSX and the issuance of
the Shares as contemplated by this Agreement does not contravene the rules and regulations of the Trading Market or the TSX. The Common
Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which
to its knowledge is likely to have the effect of, terminating the registration of the Common Shares under the Exchange Act nor has the
Company received any notification that the Commission is contemplating terminating such registration. Except as set forth in the Registration
Statement and Prospectus, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on
which the Common Shares are or have been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue
to be, in compliance with all such listing and maintenance requirements. The Common Shares are currently eligible for electronic transfer
through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to
the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(ee)
Application of Takeover Protections. Except as set forth in the Registration Statement and Prospectus, the Company and the
Board have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s Certificate
of Incorporation (or similar charter documents) or the laws of its state or jurisdiction of incorporation that is or could become applicable
to the purchasers of the Shares or the Manager.
(ff)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the
Shares from the Manager pursuant to this Agreement, will not be or be an Affiliate of, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it or its Subsidiaries
will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended.
(gg) Solvency.
Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts
and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now conducted and as proposed to be conducted in the next twelve months
including its capital needs taking into account the particular capital requirements of the business conducted by the Company,
consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company,
together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all
anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are
required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into
account the timing and amounts of cash to be payable on or in respect of its debt) within one year from the date hereof. Within one
year from the date hereof, the Company has no knowledge of any facts or circumstances which lead it to believe that it will file for
reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction. The SEC Reports set forth as of the
dates thereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any
Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for
borrowed money or amounts owed in excess of $250,000 (other than accrued liabilities and trade accounts payable incurred in the
ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of
others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course
of business; and (z) the present value of any lease payments in excess of $250,000 due under leases required to be capitalized in
accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(hh)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all necessary Canadian federal and provincial
and United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required
by any jurisdiction to which it is subject, and have paid or accrued all taxes shown as due thereon, and the Company has no knowledge
of a tax deficiency which has been asserted or threatened against the Company or reports and declarations required by any jurisdiction
to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined
to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment
of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid
taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any
Subsidiary know of no basis for any such claim.
(ii)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(jj) Mining.
The Mt Todd gold project in Northern Territory, Australia (“Material Project”) is the only material mineral
property in which the Company has an interest. To the knowledge of the Company, the Technical Reports comply in all material
respects with the requirements of National Instrument 43-101 and subpart 1300 of Regulation S-K under the Exchange Act, as
applicable, at the time of filing thereof and the Company made available to the authors of the Technical Reports, prior to the
issuance thereof, for the purpose of preparing such report, all material information requested by them, and, to the knowledge of the
Company, none of such information contained any material misrepresentation at the time such information was so provided.
“Technical Reports” means the technical reports of the Company related to the Material Project that are filed as
exhibits to, or incorporated by reference into, the Registration Statement and Prospectus. To the knowledge of the Company, the
statements contained in the Registration Statement and Prospectus regarding the Company’s interests and rights in the Material
Project do not contain a material misstatement of fact. Except as disclosed in the Registration Statement and Prospectus, any and
all of the agreements and other documents and instruments pursuant to which the Company or any Subsidiary holds the Material Project
(including any interest in, or right to earn an interest therein), are valid and subsisting agreements, documents or instruments in
full force and effect, enforceable in accordance with the terms thereof against the Company and, to the knowledge of the Company,
each counterparty thereto, and neither the Company nor any Subsidiary nor, to the knowledge of the Company, any applicable
counterparty (i) is in default of any of the provisions of any such agreements, documents or instruments nor, (ii) to the knowledge
of the Company, is any such default currently being alleged, except, in the case of both (i) and (ii), as would not, individually or
in the aggregate, have a Material Adverse Effect.
(kk)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i)
in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market
value of the Common Shares on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted
under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no
Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with,
the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results
or prospects.
(ll) Cybersecurity.
(i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s
information technology and computer systems, networks, hardware, software, data (including the data of its respective customers,
employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge
of any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems
and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments,
orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual
obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from
unauthorized use, access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material
Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to
maintain and protect its material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent
with industry standards and practices.
(mm)
Office of Foreign Assets Control. Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company,
any of the directors, officers or employees of the Company or its Subsidiaries, is an individual or entity that is, or is owned or controlled
by an individual or entity that is: (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s
Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant
sanctions authority (collectively, “Sanctions”), nor (ii) located, organized or resident in a country or territory
that is the subject of Sanctions. Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds of the
transactions contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner
or other individual or entity: (i) to fund or facilitate any activities or business of or with any individual or entity or in any
country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that
will knowingly result in a violation of Sanctions by any individual or entity (including any individual or entity participating in the
transactions contemplated hereby, whether as underwriter, advisor, investor or otherwise).
(nn)
U.S. Real Property Holding Corporation. The Company is not a U.S. real property holding corporation within the meaning of
Section 897 of the Internal Revenue Code of 1986, as amended.
(oo)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of
1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries owns or controls, directly or indirectly, five percent (5%) or more
of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any
entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries exercises
a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal
Reserve.
(pp) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company or any Subsidiary, threatened.
(qq)
FINRA Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers, directors
or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration
Statement, the Base Prospectus, any Prospectus Supplement or the Prospectus.
4.
Agreements. The Company agrees with the Manager that:
(a) Right
to Review Amendments and Supplements to Registration Statement and Prospectus. During any period when the delivery of a
prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to
Rule 172, 173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the
Company will not file any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base
Prospectus unless the Company has furnished to the Manager a copy for its review prior to filing and will not file any such proposed
amendment or supplement to which the Manager reasonably objects (provided, however, that the Company will have no obligation to
provide the Manager any advance copy of such filing or to provide the Manager an opportunity to object to such filing if the filing
does not name the Manager and does not relate to the transactions under this Agreement). The Company has properly completed the
Prospectus, in a form approved by the Manager, and filed such Prospectus, as amended at the Execution Time, with the Commission
pursuant to the applicable paragraph of Rule 424(b) on or about the Execution Time and will cause any supplement to the
Prospectus to be properly completed, in a form approved by the Manager, and will file such Prospectus Supplement with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence
reasonably satisfactory to the Manager of such timely filing. The Company will promptly advise the Manager (i) when the
Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b),
(ii) when, during any period when the delivery of a prospectus (whether physically or through compliance with Rule 172,
173 or any similar rule) is required under the Act in connection with the offering or sale of the Shares, any amendment to the
Registration Statement shall have been filed or become effective (other than any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act), (iii) of any request by the Commission or its staff for any amendment of the
Registration Statement, or for any supplement to the Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the
institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. During the term of this Agreement, the Company will use its best efforts to prevent the issuance of any
such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new registration statement declared effective as soon as
practicable.
(b)
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs
as a result of which the Registration Statement or Prospectus would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances
then prevailing not misleading, the Company will (i) notify promptly the Manager so that any use of the Registration Statement or
Prospectus may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectus to
correct such statement or omission; and (iii) supply any such amendment or supplement to the Manager in such quantities as the Manager
may reasonably request.
(c)
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required
(including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered
under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement
the Prospectus to comply with the Act or the Exchange Act or the respective rules and regulations thereunder, including in connection
with use or delivery of the Prospectus, the Company promptly will (i) notify the Manager of any such event, (ii) subject to
Section 4(a), prepare and file with the Commission an amendment or supplement or new registration statement which will correct such statement
or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any
supplemented Prospectus to the Manager in such quantities as the Manager may reasonably request.
(d) Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the
Manager an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange
Act shall be deemed to satisfy the requirements of this Section 4(d).
(e) Delivery
of Registration Statement. Upon the request of the Manager, the Company will furnish to the Manager and counsel for the Manager,
without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by
the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172,
173 or any similar rule), as many copies of the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the
Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(f)
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the
laws of such jurisdictions in the United States as the Manager may designate and will maintain such qualifications in effect so long as
required for the distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(g)
Free Writing Prospectus. The Company agrees that, unless it has or shall have obtained the prior written consent of the
Manager, and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent
of the Company, it has not made and will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433. Any such free writing prospectus consented to by the Manager or the
Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has
treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it
has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(h) Subsequent
Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered shall not
apply during such two (2) Trading Days) for at least two (2) Trading Days prior to any date on which the Company or any Subsidiary
offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other Common
Shares or any Common Share Equivalents (other than the Shares), subject to Manager’s right to waive this obligation, provided
that, without compliance with the foregoing obligation, the Company may issue and sell Common Shares pursuant to any Company Equity
Incentive Plan, stock ownership plan or dividend reinvestment plan of the Company in effect from time to time and set forth in the
SEC Reports and the Company may issue Common Shares issuable upon the conversion or exercise of Common Share Equivalents outstanding
from time to time and set forth in the SEC Reports.
(i) Market
Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action designed to
or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security of the Company
to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(j)
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented
from time to time, advise the Manager immediately after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect any opinion, certificate, letter and other document provided to the Manager pursuant to Section 6
herein.
(k) Certification
of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of
the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30
Trading Days), and each time that (i) a new Registration Statement is filed and declared effective, (ii) the Registration Statement
or Prospectus shall be amended or supplemented, other than by means of Incorporated Documents, (iii) the Company files its Annual
Report on Form 10-K under the Exchange Act, (iv) the Company files its quarterly reports on Form 10-Q under the Exchange Act, (v)
the Company files a Current Report on Form 8-K containing amended financial information (other than information that is furnished
and not filed), if the Manager reasonably determines that the information in such Form 8-K is material, or (vi) the Shares are
delivered to the Manager as principal at the Time of Delivery pursuant to a Terms Agreement (such commencement or recommencement
date and each such date referred to in (i), (ii), (iii), (iv), (v) and (vi) above, a “Representation Date”),
unless waived by the Manager, the Company shall furnish or cause to be furnished to the Manager promptly a certificate dated and
delivered on the Representation Date, in form reasonably satisfactory to the Manager to the effect that the statements contained in
the certificate referred to in Section 6 of this Agreement which were last furnished to the Manager are true and correct at the
Representation Date, as though made at and as of such date (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such date) or, in lieu of such certificate, a certificate
of the same tenor as the certificate referred to in said Section 6, modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the date of delivery of such certificate. Notwithstanding the foregoing, the
requirement to provide a certificate under this Section 4(k) shall be waived for any Representation Date occurring at a time at
which no Sales Notice is pending or a suspension is in effect, which waiver shall continue until the earlier to occur of the date
the Company delivers a Sales Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the
next occurring Representation Date on which the Company files its annual report on Form 10-K, provided, however, that, if the
Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not
provide the Manager with a certificate under this Section 4(k), then before the Company instructs the Manager to sell Shares
pursuant to this Agreement, the Company shall provide the Manager with such certificate.
(l) Bring
Down Opinions; Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived by the Manager, the Company
shall furnish or cause to be furnished forthwith to the Manager and to counsel to the Manager a written opinion of counsel to the Company
(“Company Counsel”) addressed to the Manager and dated and delivered within five (5) Trading Days of such Representation
Date, in form and substance reasonably satisfactory to the Manager, including a negative assurance representation. The requirement to
furnish or cause to be furnished an opinion (but not with respect to a negative assurance representation) under this Section 4(l) shall
be waived for any Representation Date other than a Representation Date on which a new Registration Statement is filed and declared effective
or a material amendment to the Registration Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a
material amendment thereto under the Exchange Act, unless the Manager reasonably requests such deliverable required by this Section 4(l)
in connection with a Representation Date, upon which request such deliverable shall be deliverable hereunder. Notwithstanding the foregoing,
the requirement to provide an opinion and/or negative assurance representation under this Section 4(l) shall be waived for any Representation
Date occurring at a time at which no Sales Notice is pending or a suspension is in effect, which waiver shall continue until the earlier
to occur of the date the Company delivers a Sales Notice hereunder (which for such calendar quarter shall be considered a Representation
Date) and the next occurring Representation Date on which the Company files its annual report on Form 10-K, provided, however, that,
if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not
provide the Manager with an opinion and/or negative assurance representation under this Section 4(l), then before the Company instructs
the Manager to sell Shares pursuant to this Agreement, the Company shall provide the Manager with such opinion and/or negative assurance
representation
(m) Auditor
Bring Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived by the Manager,
the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent accountants
satisfactory to the Manager forthwith to furnish the Manager a letter, and (2) the Chief Financial Officer of the Company forthwith
to furnish the Manager a certificate, in each case dated within five (5) Trading Days of such Representation Date, in form satisfactory
to the Manager, of the same tenor as the letters and certificate referred to in Section 6 of this Agreement but modified to relate to
the Registration Statement and the Prospectus, as amended and supplemented to the date of such letters and certificate. The requirement
to furnish or cause to be furnished a “comfort” letter under this Section 4(m) shall be waived for any Representation Date
other than a Representation Date on which a new Registration Statement is filed and declared effective or a material amendment to the
Registration Statement or Prospectus is made or the Company files its Annual Report on Form 10-K or a material amendment thereto under
the Exchange Act, unless the Manager reasonably requests the deliverables required by this Section 4(m) in connection with a Representation
Date, upon which request such deliverable shall be deliverable hereunder. Notwithstanding the foregoing, the requirement to deliver or
cause to be delivered one or more letters or certificates under this Section 4(m) shall at the request of the Company be waived for any
Representation Date occurring at a time at which no Sales Notice is pending or a suspension is in effect, which waiver shall continue
until the earlier to occur of the date the Company delivers a Sales Notice hereunder (which for such calendar quarter shall be considered
a Representation Date) and the next occurring Representation Date on which the Company files its annual report on Form 10-K, provided,
however, that (i) upon the delivery of the first Sales Notice hereunder and (ii) if the Company subsequently decides to sell Shares following
a Representation Date when the Company relied on such waiver and did not provide the Manager with a letter or certificate under this
Section 4(m), then before the Company instructs the Manager to sell Shares pursuant to this Agreement, the Company shall provide the
Manager with such letter or certificate dated the date of the Sales Notice.
(n) Due
Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement of the
offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than 30
Trading Days), and at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably
satisfactory to the Manager, which shall include representatives of management, Accountants and Company Counsel. The Company shall
cooperate timely with any reasonable due diligence request from or review conducted by the Manager or its agents from time to time
in connection with the transactions contemplated by this Agreement, including, without limitation, providing information and
available documents and access to appropriate corporate officers and the Company’s agents during regular business hours, and
timely furnishing or causing to be furnished such certificates, letters and opinions from the Company, its officers and its agents,
as the Manager may reasonably request. The Company shall reimburse the Manager for Manager’s counsel’s fees in each such
due diligence update session, up to a maximum of $2,500 per update, plus any incidental expense incurred by the Manager in
connection therewith.
(o)
Acknowledgment of Trading. The Company consents to the Manager trading in the Common Shares for the Manager’s own
account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to a Terms
Agreement.
(p)
Disclosure of Shares Sold. The Company will disclose in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q,
as applicable, the number of Shares sold through the Manager under this Agreement, the Net Proceeds to the Company and the compensation
paid by the Company with respect to sales of Shares pursuant to this Agreement during the relevant quarter; and, if required by any subsequent
change in Commission policy or request, more frequently by means of a Current Report on Form 8-K or a further Prospectus Supplement.
(q)
Rescission Right. If to the knowledge of the Company, the conditions set forth in Section 6 shall not have been satisfied
as of the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result
of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.
(r)
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder,
and each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Manager that the representations
and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or
of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be true
and correct as of the Settlement Date (except to the extent that any such representation and warranty is made as of a specified date,
in which case such representation and warranty shall have been true and correct as of such date) for the Shares relating to such acceptance
or as of the Time of Delivery relating to such sale, as the case may be, as though made at and as of such date (except that such representations
and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such
Shares).
(s)
Reservation of Shares. The Company will use its commercially reasonable efforts to cause the Shares to be listed for trading
on the Trading Market and the TSX and to maintain such listing.
(t)
Obligation Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the
Act, the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act and the rules and regulations thereunder.
(u)
DTC Facility. The Company shall cooperate with the Manager and use its reasonable efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.
(v)
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(w)
Filing of Prospectus Supplement. If any sales are made pursuant to this Agreement which are not made in “at the market”
offerings as defined in Rule 415, including, without limitation, any Placement pursuant to a Terms Agreement, the Company shall file a
Prospectus Supplement describing the terms of such transaction, the amount of Shares sold, the price thereof, the Manager’s compensation,
and such other information as may be required pursuant to Rule 424 and Rule 430B, as applicable, within the time required by Rule 424.
(x)
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares
as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional Common Shares necessary
to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable. After
the effectiveness of any such registration statement, all references to “Registration Statement” included in this Agreement
shall be deemed to include such new registration statement, including all documents incorporated by reference therein pursuant to Item 12
of Form S-3, and all references to “Base Prospectus” included in this Agreement shall be deemed to include the final
form of base prospectus, including all documents incorporated therein by reference, included in any such registration statement at the
time such registration statement became effective.
5. Payment
of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the
preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements
and exhibits thereto), the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus, and each Issuer Free Writing Prospectus, and all amendments
or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the
Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any
stamp or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered
in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange Act, if applicable, and
the listing of the Shares on the Trading Market and the TSX; (vi) any registration or qualification of the Shares for offer and
sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of
counsel for the Manager relating to such registration and qualification); (vii) the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Shares; (viii) the
fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for
the Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Manager’s counsel, not to
exceed $50,000 (excluding any periodic due diligence fees provided for under Section 4(n)), which shall be paid at the Execution
Time; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
6. Conditions
to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to
(i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each
Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the performance by the Company of
its obligations hereunder and (iii) the following additional conditions:
(a) Filing
of Prospectus Supplement. The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have
been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Shares; each Prospectus
Supplement shall have been filed in the manner required by Rule 424(b) within the time period required hereunder and under the Act;
any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) Delivery
of Opinion. The Company shall have caused the Company Counsel to furnish to the Manager its opinion and negative assurance
statement on, or within five (5) Trading Days following, the Execution Time and in accordance with Section 4(l), dated as of such
date and addressed to the Manager in form and substance acceptable to the Manager.
(c) Delivery
of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Manager a certificate of the Company
signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company on, or within
five (5) Trading Days following, the Execution Time and in accordance with Section 4(k), dated as of such date, to the effect that the
signers of such certificate have carefully examined the Registration Statement, the Prospectus, any Prospectus Supplement and any documents
incorporated by reference therein and any supplements or amendments thereto and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if
made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings
for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since
the date of the most recent financial statements included in the Registration Statement, the Prospectus and the Incorporated Documents,
there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Registration Statement and the Prospectus.
(d)
Delivery of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants
to have furnished to the Manager letters (which may refer to letters previously delivered to the Manager) on, or within five (5) Trading
Days following, the Execution Time and in accordance with Section 4(m), dated as of such date, in form and substance satisfactory to the
Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information
of the Company and included or incorporated by reference in the Registration Statement and the Prospectus and provide customary “comfort”
as to such review in form and substance satisfactory to the Manager.
(e)
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement,
the Prospectus and the Incorporated Documents, except as otherwise stated therein, there shall not have been (i) any change or decrease
in previously reported results specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change,
or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties
of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Registration Statement, the Prospectus and the Incorporated Documents (exclusive of any amendment
or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of
the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares
as contemplated by the Registration Statement (exclusive of any amendment thereof), the Incorporated Documents and the Prospectus (exclusive
of any amendment or supplement thereto).
(f)
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time
period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed
pursuant to Rule 424(b).
(g)
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms
and arrangements under this Agreement.
(h)
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading
Market and the TSX, and satisfactory evidence of such actions shall have been provided to the Manager.
(i)
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to
the Manager such further information, certificates and documents as the Manager may reasonably request.
If any of the conditions
specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the
Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time
prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the
Company in writing or by telephone and confirmed in writing by email.
The documents required to
be delivered by this Section 6 shall be delivered to the office of Ellenoff Grossman & Schole LLP, counsel for the Manager, at 1345
Avenue of the Americas, New York, New York 10105, email: capmkts@egsllp.com, on each such date as provided in this Agreement.
7.
Indemnification and Contribution.
(a) Indemnification
by Company. The Company agrees to indemnify and hold harmless the Manager, the directors, officers, employees and agents of the Manager
and each person who controls the Manager within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Shares as originally filed or in any amendment thereof, or in the Base Prospectus,
any Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading or arise out of or are based upon any Proceeding, commenced or threatened (whether or not
the Manager is a target of or party to such Proceeding) or result from or relate to any breach of any of the representations, warranties,
covenants or agreements made by the Company in this Agreement, and agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Company by the Manager specifically for inclusion
therein. This indemnity agreement will be in addition to any liability that the Company may otherwise have.
(b) Indemnification
by Manager. The Manager agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to the Manager, but only with reference to written information relating
to the Manager furnished to the Company by the Manager specifically for inclusion in the documents referred to in the foregoing
indemnity; provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker
Fee applicable to the Shares and paid hereunder. This indemnity agreement will be in addition to any liability which the Manager may
otherwise have.
(c)
Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party
in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.
An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) Contribution. In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 7
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Manager agree to contribute
to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending the same) (collectively “Losses”) to which the Company and the Manager may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Manager on the other from the offering
of the Shares; provided, however, that in no case shall the Manager be responsible for any amount in excess of the Broker
Fee applicable to the Shares and paid hereunder. If the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and the Manager severally shall contribute in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the Manager on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by
the Manager shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder as determined by this Agreement.
Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the
Manager on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Manager agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls the Manager within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of the Manager shall have the same rights to contribution as the Manager, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
8.
Termination.
(a) The
Company shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time upon five (5) Business Days’
prior written notice. Any such termination shall be without liability of any party to any other party except that (i) with
respect to any pending sale, through the Manager for the Company, the obligations of the Company, including in respect of
compensation of the Manager, shall remain in full force and effect notwithstanding the termination and (ii) the provisions of
Sections 5, 6, 7, 8, 9, 10, 12, 14 and 15 of this Agreement shall remain in full force and effect notwithstanding such
termination.
(b)
The Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party except that the provisions of Sections 5, 6, 7, 8, 9, 10, 12, 14 and 15 of this Agreement
shall remain in full force and effect notwithstanding such termination.
(c)
This Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 8(a)
or (b) above or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all
cases be deemed to provide that Sections 5, 6, 7, 8, 9, 10, 12, 14 and 15 of this Agreement shall remain in full force and effect.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares
shall settle in accordance with the provisions of Section 2(b) of this Agreement.
(e)
In the case of any purchase of Shares by the Manager pursuant to a Terms Agreement, the obligations of the Manager pursuant to
such Terms Agreement shall be subject to termination, in the absolute discretion of the Manager, by prompt oral notice given to the Company
prior to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time of execution
of the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Shares shall have been suspended by the
Commission or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited or minimum
prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New
York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States
of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole
judgment of the Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Prospectus
(exclusive of any amendment or supplement thereto).
9.
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Manager set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by the Manager or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 7, and will survive delivery of and payment for the Shares.
10.
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or
e-mailed to the addresses of the Company and the Manager, respectively, set forth on the signature page hereto.
11.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder.
12.
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, on the one hand, and the Manager and any affiliate through which
it may be acting, on the other, (b) the Manager is acting solely as sales agent and/or principal in connection with the purchase
and sale of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s engagement of the Manager
in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective
of whether the Manager has advised or is currently advising the Company on related or other matters). The Company agrees that it will
not claim that the Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto.
13. Integration. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or
oral) between the Company and the Manager with respect to the subject matter hereof.
14. Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Manager. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right
hereunder in any manner impair the exercise of any such right.
15. Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed within the State of New York. Each of the Company and the
Manager: (i) agrees that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively
in New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives
any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the
exclusive jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern District
of New York in any such suit, action or proceeding. Each of the Company and the Manager further agrees to accept and acknowledge service
of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York,
or in the United States District Court for the Southern District of New York and agrees that service of process upon the Company mailed
by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any
such suit, action or proceeding, and service of process upon the Manager mailed by certified mail to the Manager’s address shall
be deemed in every respect effective service process upon the Manager, in any such suit, action or proceeding. If either party shall
commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
16. Waiver
of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions contemplated hereby
or thereby.
17. Counterparts.
This Agreement and any Terms Agreement may be executed in one or more counterparts, each one of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon one and the same agreement. Counterparts may be delivered via electronic
mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic
Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
***************************
18. Headings.
The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance
with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the Manager.
Very truly yours,
vista
gold corp. |
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By: |
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Title: |
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Address for
Notice: |
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8310 S. Valley
Hwy, Suite 300 |
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Englewood,
Colorado 80112 |
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Attention:
________ |
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Email: ________ |
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The foregoing Agreement is hereby confirmed and accepted
as of the date first written above.
H.C.
WAINWRIGHT & CO., LLC |
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By: |
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Title: |
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Address for Notice:
430 Park Avenue
New York, New York 10022
Attention: Chief Executive Officer
E-mail: notices@hcwco.com
Form of Terms Agreement
ANNEX I
vista
gold corp.
TERMS AGREEMENT
Dear Sirs:
Vista
Gold Corp. (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market Offering
Agreement, dated November 8, 2024 (the “At The Market Offering Agreement”), between the Company and H.C. Wainwright
& Co., LLC (“Manager”), to issue and sell to Manager the securities specified in the Schedule I hereto
(the “Purchased Shares”).
Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Manager, as agent of the
Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 3 of the At The Market Offering Agreement which makes reference to the Prospectus (as
therein defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation
to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation
to the Prospectus as amended and supplemented to relate to the Purchased Shares.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectus, as the
case may be, relating to the Purchased Shares, in the form heretofore delivered to the Manager is now proposed to be filed with the Securities
and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference, the
Company agrees to issue and sell to the Manager and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
If
the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement,
including those provisions of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement
between the Manager and the Company.
vista gold corp. |
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ACCEPTED as of the date first written above. |
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H.C. WAINWRIGHT & CO., LLC |
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By: |
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Name: |
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Exhibit 5.1
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Borden Ladner Gervais LLP
1200 Waterfront Centre
200 Burrard St, P.O. Box
48600
Vancouver, BC, Canada V7X 1T2
T 604.687.5744
F 604.687.1415
blg.com |
|
November 8, 2024
Vista Gold Corp.
8310 S Valley Hwy, Suite 300
Englewood, CO 80112
Dear Sirs/Mesdames
Re: Registration Statement on Form S-3
(the “Registration Statement”)
We have acted as British Columbia
counsel to Vista Gold Corp., a British Columbia corporation (the “Company”), with respect to certain legal matters
in connection with the registration by the Company, under the U.S. Securities Act of 1933, as amended (the “Securities Act”),
of the offer and sale by the Company in the United States of its common shares, having an aggregate offering price of up to US$8,000,000
pursuant to an At the Market Offering Agreement dated November 8, 2024 (the “ATM Agreement”) by and between the
Company and H.C. Wainwright & Co., LLC (the “Manager”). The Company previously filed prospectus supplements
to its base prospectus contained in its prior registration statements on Form S-3, pursuant to which it offered and sold an aggregate
of 3,341,716 common shares with an aggregate offering price of US$2,128,799. The current prospectus supplement dated October 17,
2024 relates to the offer (the “Offering”) of up to $10,000,000 of the Company’s common shares (the “Shares”)
pursuant to the Company’s base prospectus under its new registration statement on Form S-3. The Toronto Stock Exchange has
approved the listing of 10,000,000 Shares of which 3,341,716 Shares have been issued.
We have examined such documents
and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of our opinions set forth below.
In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness
of all signatures and the conformity to authentic originals of all documents submitted to us as copies or facsimile transmissions. We
have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements
or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise)
to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite
action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the legal, valid,
binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates
of officers of the Company and of public officials. We have not undertaken any independent investigation to verify the accuracy or completeness
of any of the foregoing assumptions.
For purposes of this opinion
letter, we have also assumed that (a) the Registration Statement, and any amendments thereto (including post-effective amendments),
will have become effective and such effectiveness will not have been terminated or rescinded, (b) all Shares will be offered, issued
and sold in compliance with applicable United States federal and state securities laws and in the manner stated in the Registration Statement
and the prospectus supplement filed in the United States, (c) at the time of the issuance of the Shares there will be sufficient
common shares authorized and unissued under the Company’s then operative notice of articles (the “Notice of Articles”)
and not otherwise reserved for issuance, (d) at the time of issuance of the Shares, the Company validly exists and is duly qualified
and in good standing under the laws of its jurisdiction of incorporation, and has the necessary corporate power for such issuance, (e) at
the time of issuance of the Shares, the Notice of Articles and then operative articles of the Company (the “Articles”
and collectively with the Notice of Articles, the “Charter Documents”) are in full force and effect and have not been
amended, restated, supplemented or otherwise altered, and there has been no authorization of any such amendment, restatement, supplement
or other alteration, in either case since the date hereof, (f) that the issuance, terms, execution and delivery of the Shares (A) do
not result in breaches of, or defaults under, agreements or instruments to which the Company is bound or violations of applicable statutes,
rules, regulations or court or governmental orders, and (B) comply with any applicable requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company. We have not undertaken any independent investigation to verify the accuracy
or completeness of any of the foregoing assumptions.
Lawyers | Patent & Trademark Agents Borden
Ladner Gervais LLP is an Ontario Limited Liability Partnership
Based upon and subject to
the foregoing, we are of the opinion that:
The Shares will be duly authorized,
validly issued, fully paid and non-assessable when certificates representing the Shares have been duly executed, countersigned, registered
and delivered, or if uncertificated, valid book-entry notations have been made in the share register of the Company, in each case in accordance
with the Charter Documents against payment therefor in an amount determined in accordance with the ATM Agreement for each Common Share.
Our opinions expressed herein
are subject to the following qualifications:
|
(a) |
the enforceability of any agreement may be limited by bankruptcy, reorganization, winding-up, insolvency, moratorium, arrangement, fraudulent preference and conveyance, assignment and preference and other similar laws of general application affecting the enforcement of creditor’s rights; |
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(b) |
no opinion is given as to the enforceability of any term providing for the severance of void, illegal or unenforceable provisions from the remaining provisions of an agreement; |
|
(c) |
no opinion is given as to the enforceability of any term providing that modifications, amendments or waivers are not binding unless in writing; |
|
(d) |
no opinion is given with respect to rights to indemnity and contribution; |
|
(e) |
the enforceability of the obligations of a party under any agreement is subject to general principles of equity, including, without limitation: |
|
(i) |
concepts of materiality, reasonableness, good faith and fair dealing in performance and enforcement of a contract required of the party seeking its enforcement; |
|
(ii) |
the discretion exercisable by a court with respect to equitable remedies, such as specific performance and injunction; |
|
(iii) |
the discretion exercisable by a court with respect to stays of enforcement proceedings and execution of judgments; |
|
(iv) |
the effect of vitiating factors, such as mistake, misrepresentation, fraud, duress or undue influence; and |
|
(v) |
the discretion of a court with respect to the enforcement of provisions in an agreement to the effect that certain factual or legal determinations, calculations or certificates will be conclusive and binding; |
|
(f) |
a court may reserve to itself the right to decline jurisdiction in any action if the court is an inconvenient forum to hear the action or if concurrent proceedings are being brought elsewhere, notwithstanding any waiver of the right to raise such objection or defence thereto; |
|
(g) |
the right to exercise any unilateral or unfettered discretion pursuant to an agreement will not prevent a court from requiring such discretion to be exercised reasonably; and |
|
(h) |
the recoverability of costs and expenses may be limited to those a court considers to be reasonably incurred, the costs and expenses incidental to all court proceedings are in the discretion of the court and the court has the discretion to determine by whom and to what extent these costs shall be paid. |
The foregoing opinions are
limited to the laws of the Province of British Columbia and the federal laws of Canada applicable therein on the date of this opinion,
and we are expressing no opinion as to the effect of the laws of any other jurisdiction, domestic or foreign.
The opinion expressed in this
letter is for the sole benefit of the Company in connection with the Registration Statement. This opinion may not be relied upon by, disclosed
to, or filed with, any other person without our prior written consent.
Lawyers | Patent & Trademark Agents Borden
Ladner Gervais LLP is an Ontario Limited Liability Partnership
Notwithstanding the foregoing,
we hereby consent to the filing of this opinion with the Securities Exchange Commission (the “SEC”) as an exhibit to
the Current Report on Form 8-K to be filed by the Company in connection with the Offering. We also hereby consent to the use of our
name under the heading “Legal Matters” in the Base Prospectus and Prospectus Supplement which forms part of the Registration
Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the SEC promulgated thereunder.
This opinion is expressed
as of the date hereof and unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in
the facts stated or assumed herein or of any subsequent changes in applicable laws.
Very truly yours,
/s/ Borden Ladner Gervais LLP
v3.24.3
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Vista Gold (AMEX:VGZ)
過去 株価チャート
から 10 2024 まで 11 2024
Vista Gold (AMEX:VGZ)
過去 株価チャート
から 11 2023 まで 11 2024