fv10ef
Registration
No. 333-142655
As filed
with the Securities and Exchange Commission on May 14, 2007
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
FORM F-10
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GOLD RESERVE INC.
(Exact name of Registrant as specified in its charter)
|
|
|
|
|
Yukon Territory
|
|
1040
|
|
Not Applicable |
(Province or other Jurisdiction of
|
|
(Primary Standard Industrial
|
|
(I.R.S. Employer |
Incorporation or Organization)
|
|
Classification Code Number)
|
|
Identification Number, if any) |
926 West Sprague Ave., Suite 200
Spokane, WA 99201
(509) 623-1500
(Address and telephone number of Registrants principal executive offices)
Gold Reserve Corporation
926 West Sprague Ave., Suite 200
Spokane, WA 99201
(509) 623-1500
(Name, address (including zip code) and telephone number (including area code) of agent for service in the United States)
Copies to:
|
|
|
|
|
|
|
|
|
Robert
A. McGuinness
Gold Reserve Inc.
926 West Sprague Ave.
Suite 200
Spokane, WA 99201
(509) 623-1500
|
|
Charles L.K. Higgins
Fasken Martineau DuMolin LLP
Toronto Dominion Centre
66 Wellington St. W., #4200
Toronto, ON M5K 1N6
(416) 865-4392
|
|
Jonathan B. Newton
Baker & McKenzie LLP
Pennzoil Place, South Tower
711 Louisiana St., Suite 3400
Houston, TX 77002
(713) 427-5000
|
|
Kevin Rooney
Heenan Blaikie LLP
Royal Bank Plaza
Suite 2600
Toronto, ON M5S 2J4
(416) 360-6336
|
|
Riccardo Leofanti
Skadden, Arps, Slate,
Meagher & Flom LLP
222 Bay Street, Suite 1750
Toronto, ON M5K 1J5
(416) 777-4700 |
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the Registration Statement becomes effective.
Province of Ontario, Canada
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective (check appropriate box below):
|
|
|
|
|
|
|
|
|
A. |
|
þ
|
|
upon filing with the Commission, pursuant to Rule 467(a) (if in connection with an offering being made contemporaneously in the
United States and Canada). |
B. |
|
o
|
|
at some future date (check appropriate box below) |
|
|
|
1. |
|
|
o
|
|
pursuant to Rule 467(b) on ( ) at ( ) (designate a time not sooner than seven calendar days after filing). |
|
|
|
2. |
|
|
o
|
|
pursuant to Rule 467(b) on ( ) at ( ) (designate a time seven calendar days or sooner after filing) because the
securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on ( ). |
|
|
|
3. |
|
|
o
|
|
pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the Registrant or the Canadian securities
regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto. |
|
|
|
4. |
|
|
o
|
|
after the filing of the next amendment to this Form (if preliminary material is being filed). |
If any of the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to the home jurisdictions shelf prospectus offering procedures, check
the following box. o
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed Maximum |
|
|
Proposed Maximum |
|
|
Amount of |
|
|
Title of each Class of |
|
|
Amount to be |
|
|
Offering Price per |
|
|
Aggregate Offering |
|
|
Registration |
|
|
Securities to be Registered |
|
|
Registered |
|
|
Common Share |
|
|
Price |
|
|
Fee |
|
|
Class A common shares, no par value |
|
|
18,400,000(1) |
|
|
$7.21(2) |
|
|
$132,664,000 |
|
|
$4,073(3) |
|
|
Class A
common shares, no par value |
|
|
3,680,000 |
|
|
$6.98(4) |
|
|
$25,686,400 |
|
|
$790(5) |
|
|
Class A common share purchase rights |
|
|
18,400,000(1) |
|
|
N/A |
|
|
N/A |
|
|
N/A(6) |
|
|
Class A common share purchase rights |
|
|
3,680,000 |
|
|
N/A |
|
|
N/A |
|
|
N/A(6) |
|
|
|
|
|
|
(1) |
|
Includes Class A common shares that the underwriters have the option to purchase to cover over-allotments, if any. |
|
|
|
(2) |
|
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) of the Securities Act of 1933, as amended,
based on the average of the high and low prices of the Registrants Class A common shares on the American Stock Exchange on May 4, 2007. |
|
|
|
(3) |
|
Previously paid. |
|
|
|
|
(4) |
|
Estimated solely for the purpose of calculating the amount of
the registration fee pursuant to Rule 457(c) of the Securities Act of
1933, as amended, based on the average of the high and low prices of
the Registrants Class A common shares on the American
Stock Exchange on May 10, 2007. |
|
|
|
|
(5) |
|
Paid herewith. |
|
|
|
(6) |
|
In accordance with Rule 457(g), no additional registration fee is required in respect of the Class A common share purchase rights. |
|
The Registrant hereby amends this Registration Statement on such date or dates as may be
necessary to delay its effective date until the Registration Statement shall become effective
as provided in Rule 467 under the Securities Act of 1933 or on such date as the Commission,
acting pursuant to Section 8(a) of the Act, may determine.
PART I
INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities, and we are not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not
permitted.
|
Subject
to completion, dated May 14, 2007
Prospectus
16,000,000 shares
Class A Common
shares
Gold Reserve Inc. is selling 16,000,000 of its Class A
common shares. The company has granted the underwriters an
option for a period of 30 days to purchase up to 2,400,000
additional common shares.
The outstanding common shares of the company are listed for
trading on the American Stock Exchange (AMEX) and
the Toronto Stock Exchange (the TSX) under the
symbol GRZ. On May 11, 2007, the closing price
of the common shares on AMEX and the TSX was US$6.89 and
Cdn$7.67, respectively. The TSX has conditionally approved the
listing of the common shares. Listing is subject to our
fulfilling all of the requirements of the TSX on or before
August 3, 2007, including distribution of the common shares
to a minimum number of public securityholders. Application has
also been made to have the common shares offered hereby listed
on AMEX.
|
|
|
|
|
|
|
|
|
|
|
Per
share
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
Public offering price
|
|
US$
|
|
|
|
US$
|
|
|
|
|
|
|
|
|
|
|
|
Underwriting discounts and
commissions
|
|
US$
|
|
|
|
US$
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds to the company, before
expenses
|
|
US$
|
|
|
|
US$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investing in our common shares involves a high degree of
risk. See Risk factors beginning on page 1.
This offering is made by a foreign issuer that is permitted,
under a multijurisdictional disclosure system adopted by the
United States and Canada, to prepare this prospectus in
accordance with Canadian disclosure requirements. Prospective
investors should be aware that such requirements are different
from those of the United States. Financial statements included
or incorporated herein have been prepared in accordance with
Canadian generally accepted accounting principles, and may be
subject to Canadian auditing and auditor independence standards,
and thus may not be comparable to financial statements of United
States companies.
Prospective investors should be aware that the acquisition of
the securities described herein is subject to complex tax rules
and may have tax consequences both in the United States and in
Canada. See Income tax considerations. Such
consequences for investors who are resident in, or citizens of,
the United States may not be described fully herein.
The enforcement by investors of civil liabilities under the
federal securities laws may be affected adversely by the fact
that the company is organized under the laws of the Yukon
Territory, Canada, that some of its officers and directors are
residents of Canada, that some of the underwriters or experts
named in the prospectus are residents of Canada, and that a
substantial portion of the assets of the company and said
persons are located outside the United States.
These securities have not been approved or disapproved by the
Securities and Exchange Commission nor has the Commission passed
upon the accuracy or adequacy of this prospectus. Any
representation to the contrary is a criminal offense.
|
|
JPMorgan
|
RBC Capital
Markets |
Cormark
Securities
,
2007
Table of
contents
|
|
|
|
|
|
|
|
i
|
|
|
|
|
ii
|
|
|
|
|
vii
|
|
|
|
|
1
|
|
|
|
|
15
|
|
|
|
|
16
|
|
|
|
|
16
|
|
|
|
|
18
|
|
|
|
|
18
|
|
|
|
|
19
|
|
|
|
|
20
|
|
|
|
|
21
|
|
|
|
|
21
|
|
|
|
|
32
|
|
|
|
|
35
|
|
|
|
|
35
|
|
|
|
|
35
|
|
|
|
|
36
|
|
|
|
|
37
|
|
|
|
|
37
|
|
|
|
|
38
|
|
In making your investment decision, you should rely only on
the information contained or incorporated by reference in this
prospectus. We and the underwriters have not authorized anyone
to provide you with any other information. If you receive any
other information, you should not rely on it.
We and the underwriters are offering to sell the securities
only in places where offers and sales are permitted.
You should not assume that the information contained in this
prospectus is accurate as of any date other than the date on the
front cover of this prospectus. You should not assume that the
information contained in the documents incorporated by reference
in this prospectus is accurate as of any date other than the
respective dates of those documents. Our business, financial
condition, results of operations and prospects may have changed
since those dates.
Unless stated otherwise, all references to US$,
$, or dollars in this prospectus are
references to United States dollars and references to
Cdn. $ are to Canadian dollars. See
Exchange rate information. Our financial statements
that are incorporated by reference into this prospectus have
been prepared in United States dollars in accordance with
generally accepted accounting principles in Canada
(Canadian GAAP), and are reconciled to generally
accepted accounting principles in the United States
(U.S. GAAP) as described in note 11 to our
audited consolidated financial statements for the year ended
December 31, 2006.
References throughout this prospectus to the
Company or the terms we, us
and our, except as otherwise indicated in this
prospectus, refer primarily to Gold Reserve Inc. and its
wholly-owned subsidiaries.
Cautionary note
to United States investors
This prospectus, including the documents incorporated by
reference in this prospectus, has been prepared in accordance
with the requirements of securities laws in effect in Canada,
which differ from the requirements of U.S. securities laws.
Without limiting the foregoing, this prospectus, including the
documents incorporated by reference in this prospectus, uses the
terms measured, indicated and
inferred resources. U.S. investors are advised
that, while such terms are recognized and required by Canadian
securities laws, the United States Securities and Exchange
Commission (the SEC) does not recognize them,
including under its Industry Guide 7. As further described in
our annual information form incorporated by reference in this
prospectus, under U.S. standards, mineralization may not be
classified as a reserve unless the determination has
been made that the mineralization could be economically and
legally produced or extracted at the time the reserve
determination is made. See Documents incorporated by
reference. U.S. investors are cautioned not to assume
that all or any part of measured or indicated resources will
ever be converted into reserves. Further, inferred
resources have a great amount of uncertainty as to their
existence and as to whether they can be mined legally or
economically. It cannot be assumed that all or any part of the
inferred resources will ever be upgraded to a higher
category. Therefore, U.S. investors are also cautioned not
to assume that all or any part of the inferred resources exist,
or that they can be mined legally or economically. Under
Canadian disclosure rules, estimates of inferred mineral
resources may not form the basis of feasibility or
prefeasibility studies, except in rare cases. Disclosure of
contained ounces is permitted disclosure under
Canadian securities laws, however, the SEC normally only permits
issuers to report resources as in place tonnage and
grade without reference to unit measures. Accordingly,
information concerning descriptions of mineralization, resources
and reserves contained in this prospectus or in the documents
incorporated by reference in this prospectus may not be
comparable to information made public by U.S. companies
subject only to the reporting and disclosure requirements of the
SEC.
National Instrument
43-101-Standards
of Disclosure for Mineral Projects (NI
43-101)
is a rule developed by the Canadian Securities Administrators
that establishes standards for all public disclosure an issuer
makes of scientific and technical information concerning mineral
projects. Unless otherwise indicated, all reserve and resource
estimates contained in or incorporated by reference in this
prospectus have been prepared in accordance with NI
43-101 and
the Canadian Institute of Mining, Metallurgy and Petroleum
Classification System and not the SECs Industry Guide 7.
These standards differ significantly from the requirements of
the SEC (including under its Industry Guide 7), and reserve and
resource information contained or incorporated by reference in
this prospectus may not be comparable to similar information
disclosed by U.S. companies or in a
U.S.-style
prospectus.
See Glossary of Significant Terms in the
Companys annual information form incorporated by reference
in this prospectus for a description of certain of the mining
terms used in this prospectus and in the documents incorporated
by reference in this prospectus.
i
The
Company
Overview
We are a mining company and have been engaged in the business of
exploration and development of mining projects since 1956. We
are presently focusing our management and financial resources on
our most significant asset, the Brisas gold and copper project
(Brisas), located in Bolivar State, Venezuela.
We acquired Brisas in 1992 and since then we have expended over
$100 million on the property. Brisas is one of the largest
undeveloped gold and copper deposits in the world, as measured
by its proven and probable reserves of 10.4 million ounces of
gold and 1.3 billion pounds of copper. We believe Brisas has
many competitive strengths, including:
Attractive production profile Upon
start-up, currently expected in 2010, Brisas is expected to
yield average annual production of 456,000 ounces of gold and 60
million pounds of copper over an estimated mine life of 18.5
years.
Low cost production Cash operating
costs are currently anticipated to be in the lower quartile of
the worldwide gold industry cost curve. Brisas is expected to
benefit from access to low-cost energy in Venezuela and also
from by-product credits related to copper production. Cash
operating costs are estimated at $126 per ounce of gold, net of
copper credits at $1.80 per pound of copper. Cash operating
costs at Brisas are highly leveraged to copper, and at current
copper prices Brisas would have negative cash operating costs
per ounce of gold produced.
Pre-existing infrastructure Brisas is
located approximately three kilometers from a paved highway, a
400 kilovolt transmission line and a power substation.
Additionally, the nearby industrial center of Puerto Ordaz has a
seagoing port, and is accessible by highway.
Attractive geography/geology Brisas is
located within a tropical climate zone, near sea level and has
relatively flat topography. Large, disseminated mineralization
is conducive to a low-cost, bulk mining method (conventional
open-pit mining and flotation processing using large-scale
equipment).
Advanced level of permitting In early
2007, the Ministry of Environment (the
MINAMB)
accepted the Brisas Environmental and Social Impact Study for
the Construction of Infrastructure and for the Exploitation and
Processing of Gold and Copper Ore (ESIA), which is
the basis for the issuance of all MINAMB permits and
authorizations that we require to ultimately exploit the gold
and copper mineralization at Brisas. On March 27, 2007, the
MINAMB issued to us the Authorization for the Affectation of
Natural Resources for the Construction of the Infrastructure and
Services Phase of Brisas which allows us to commence certain
infrastructure and construction activities at or near the mine
site.
Established position in Venezuela with successful track
record We have been present in Venezuela for
approximately 15 years and maintain a constructive relationship
with the relevant regulatory authorities in the country.
ii
Properties
The following description summarizes selected information about
Brisas, as well as our Choco 5 exploration property. Please
refer to the our annual information form for the fiscal year
ended December 31, 2006, which is incorporated by reference
in this prospectus, for a further description of our properties.
Brisas
Our primary mining asset, Brisas, is located in the State of
Bolivar in south-eastern Venezuela. Brisas is approximately
373 kilometers (230 miles), by paved highway, from
Puerto Ordaz. The mine site is three kilometers from the highway
and accessible by an all-weather road.
The principal component of Brisas is a 500-hectare land parcel
consisting of the Brisas alluvial concession and the Brisas
hardrock concession beneath the alluvial concession. Together
these concessions contain substantially all of the
mineralization identified in the Brisas Report as defined below.
Brisas also includes a number of other concessions,
Corporación Venezolana de Guayana (CVG) work
contracts and pending applications for land use authorizations
and easements relating to as much as 11,000 hectares of land
parcels adjacent to or near the existing Brisas concessions.
The predecessor to the Ministry of Basic Industries and Mining
(the MIBAM) approved the Brisas operating plan
during 2003. Approval of the operating plan by the MIBAM was a
prerequisite for submitting the ESIA to the MINAMB.
Our ESIA was submitted to the MINAMB during July 2005. In early
2007 the MINAMB accepted the ESIA, which is the basis for the
issuance of all MINAMB permits and authorizations that we
iii
require to ultimately exploit the gold and copper mineralization
at Brisas, and on March 27, 2007 issued the Authorization
for the Affectation of Natural Resources for the Construction of
Infrastructure and Services Phase of Brisas.
While the issuance of the Authorization for the Affectation of
Natural Resources for the Construction of Infrastructure and
Services Phase of Brisas does not permit us to exploit the gold
and copper mineralization at Brisas at this time, this permit
allows us to commence certain infrastructure work detailed
below, including various construction activities at or near the
mine site.
We expect to proceed with initial construction activities at
Brisas shortly after the completion of this offering. The
activities will include mobilization of SNC-Lavalin, our
Engineering Procurement and Construction Management
(EPCM) contractor, pit dewatering, construction of a
man-camp and office complex, clearing and earthworks for the
mill site, and construction of a tailings management facility
footprint, eight sedimentation ponds, a power-line corridor, a
5.7 km conveyor belt and service road corridor, lay down
areas, a rock quarry, a sanitary fill and all other related mine
site preparation works. In addition we will continue key
activities related to the detailed engineering and the pursuit
of additional authorizations and permits. The timeline for the
activities covered by the recently approved permit is estimated
to be
14-16 months
at an estimated cost of approximately $100 million.
We are currently working with the MINAMB on an environmental and
social evaluation related to the collective environmental impact
of Brisas and surrounding mining and infrastructure projects.
During this assessment period and upon the completion of the
evaluation, we expect to receive additional permits or
authorizations from the MINAMB that relate to additional
infrastructure approval and the approval of the exploitation
phase. We also continue to pursue additional permits and
authorizations from various local, state and federal agencies.
We anticipate an overall 30 month construction period for
Brisas and, assuming we receive the required exploitation permit
and appropriate authorizations, we expect commissioning and
achievement of commercial production shortly thereafter. Our
estimate of the capital cost for Brisas as of April 2006 is
$638 million over the remaining construction period. Our
capital cost estimate excludes value added taxes and import
duties, which we expect will be refundable, but could total as
much as $50 million.
Project debt
financing
In November 2006, we appointed Corporación Andina de
Fomento, Export Development Canada, UniCredit Group and WestLB
AG as mandated lead arrangers to arrange up to $425 million
of project debt for Brisas. Any future project debt funding is,
among other things, subject to satisfactory due diligence
findings, sufficient equity capital being raised for Brisas,
market conditions, final credit committee approval and other
conditions precedent.
Brisas
Report
In February 2005, we, together with independent consultants,
completed the Brisas Project Bankable Feasibility Study. In
November 2006, Pincock, Allen & Holt (PAH)
updated the mineral resource and reserve estimate and prepared a
43-101 report (the Brisas Report) for Brisas, which
is summarized below.
iv
The Brisas operating plan assumes a large open-pit mine
containing proven and probable reserves of approximately
10.4 million ounces of gold and 1.3 billion pounds of
copper contained in 485 million tonnes of ore grading 0.67
grams of gold per tonne and 0.13% copper, at a revenue cutoff
grade of $3.04 per tonne for hard rock and $3.24 per tonne for
saprolite. Mineral reserves were estimated within a final pit
design based on $400 per ounce of gold and $1.15 per pound
of copper.
The Brisas Report anticipates that Brisas, at full production
levels, utilizing conventional truck and shovel mining methods
and processing ore at 70,000 tonnes per day, would yield an
average annual production of 456,000 ounces of gold and
60 million pounds of copper over an estimated mine life of
approximately 18.5 years.
For purposes of economic analysis, the base case economic model
utilized an average price of $470 per ounce of gold and
$1.80 per pound of copper resulting in $126 per ounce of gold
cash operating costs net of copper credits and excluding
production taxes.
The Brisas Report included the following updated sensitivity
analysis:
Economic
EvaluationBase Case and Price Sensitivity (Metal prices
move together)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Metal
prices
|
|
|
|
Pre-tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
|
|
Net
|
|
|
|
|
|
|
Cash
|
|
|
|
present
|
|
present
|
|
|
Gold
|
|
Copper
|
|
cost
per
|
|
Internal
rate
|
|
value
|
|
value
|
|
Payback
|
($/oz)
|
|
($/lb)
|
|
Au
oz(1)
|
|
of
return
|
|
at 0%
|
|
at 5%
|
|
(years)(2)
|
|
|
|
|
|
|
|
|
|
($
millions)
|
|
|
|
$570
|
|
$
|
2.80
|
|
$
|
24
|
|
|
25.8%
|
|
$
|
3,756
|
|
$
|
1,812
|
|
|
4.3
|
520
|
|
|
2.30
|
|
|
82
|
|
|
20.9%
|
|
|
2,833
|
|
|
1,298
|
|
|
5.2
|
470
|
|
|
1.80
|
|
|
142
|
|
|
15.4%
|
|
|
1,909
|
|
|
783
|
|
|
6.7
|
420
|
|
|
1.30
|
|
|
194
|
|
|
9.5%
|
|
|
1,043
|
|
|
303
|
|
|
10.2
|
|
|
|
|
(1)
|
|
Net of copper by-product credit and
includes production taxes.
|
|
(2)
|
|
Payback (years) relates to recovery
of equity invested as the financial model has been prepared on
an after tax, un-leveraged equity only basis
|
Brisas mineral
reserve as at November 2006
Brisas is estimated to contain a proven and probable mineral
reserve of approximately 10.4 million ounces of gold and
1.3 billion pounds of copper. The estimated proven and
probable mineral reserve utilizing traditional flotation and
off-site smelter processes is summarized in the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reserve
|
|
Au
|
|
Cu
|
|
|
|
|
|
Waste
|
|
Total
|
|
|
|
|
tonnes
|
|
Grade
|
|
Grade
|
|
Au oz.
|
|
Cu lb.
|
|
tonnes
|
|
tonnes
|
|
Strip
|
Class
|
|
(millions)
|
|
(gpt)
|
|
(%)
|
|
(thousands)
|
|
(millions)
|
|
(millions)
|
|
(millions)
|
|
Ratio
|
|
|
Proven
|
|
|
226.3
|
|
|
0.69
|
|
|
0.12
|
|
|
5,032
|
|
|
601
|
|
|
|
|
|
|
|
|
|
Probable
|
|
|
258.4
|
|
|
0.64
|
|
|
0.13
|
|
|
5,357
|
|
|
737
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
484.7
|
|
|
0.67
|
|
|
0.13
|
|
|
10,389
|
|
|
1,338
|
|
|
952.3
|
|
|
1,437.0
|
|
|
1.96
|
|
The mineral reserve (within a pit design) has been estimated
using average recovery rates for gold and copper of
approximately 83% and 87% respectively, metal prices of $400 per
ounce
v
gold and $1.15 per pound copper and an internal revenue cut-off
of $3.04 per tonne for hard rock and $3.24 per tonne for
saprolite.
Brisas mineral resource estimate as at November 2006
The estimated measured and indicated mineral resource utilizing
an off-site smelter process is summarized in the following table
and includes the mineral reserve estimate shown above:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Measured
|
|
Indicated
|
|
Measured and
Indicated
|
|
|
|
|
|
|
|
Au
Eq Cut-off Grade
|
|
Au
|
|
Cu
|
|
Au
|
|
Cu
|
|
Au
|
|
Cu
|
(In
millions)
|
|
(oz)
|
|
(lb)
|
|
(oz)
|
|
(lb)
|
|
(oz)
|
|
(lb)
|
|
|
0.40
|
|
|
5.527
|
|
|
657
|
|
|
6.621
|
|
|
927
|
|
|
12.148
|
|
|
1,584
|
|
The mineral resource and gold equivalent (AuEq) cut-off is based
on $400 per gold ounce and $1.15 per pound copper. The
inferred mineral resource, based on an off-site smelter process
(0.4 gram per tonne gold equivalent cutoff), is estimated
at 114.9 million tonnes containing 0.590 grams gold per
tonne and 0.12 percent copper, or 2.18 million ounces
of gold and 294 million pounds of copper.
The Choco 5
property
The Choco 5 property is an early stage gold exploration property
located in the El Callao mining district in southeastern
Venezuela. Several mining companies are active in the area and
adjacent to the property is a producing gold mine owned and
operated by Gold Fields Limited. The Choco 5 property has
substantially the same regional infrastructure as Brisas, being
the same highway system and regional and local services and is
5,000 hectares in land size. Choco 5 is not currently a material
property for purposes of
NI 43-101.
Corporate offices
and registered agent
Our registered agent is Austring, Fendrick, Fairman &
Parkkari, The Drury Building, 3801 Third Avenue, Whitehorse,
Yukon Y1A 4Z7. Telephone and fax numbers for our registered
office are
(867) 668-4405
and
(867) 668-3710,
respectively. Our Brisas corporate administrative office is
located at 926 West Sprague Avenue, Suite 200, Spokane,
Washington 99201. Our Venezuelan administrative and technical
offices are located in Caracas and Puerto Ordaz, Venezuela. The
telephone and fax numbers for our administrative office located
in Spokane, Washington are
(509) 623-1500
and
(509) 623-1634,
respectively. We also maintain technical staff in Toronto,
Canada and Denver, Colorado.
vi
The
offering
The following summary contains basic information about this
offering and is not intended to be complete. It does not contain
all the information that may be important to you. You should
carefully read the entire prospectus and the documents
incorporated by reference before making an investment decision.
Unless otherwise indicated, the information in this prospectus
assumes that the underwriters do not exercise their
over-allotment option to purchase additional common shares.
|
|
|
Securities offered |
|
16,000,000 Class A common shares. |
|
|
|
Over-allotment option |
|
The underwriters have been granted an over-allotment option to
purchase up to 2,400,000 additional common shares at the
offering price. The over-allotment option is exercisable for
30 days from the date of closing of this offering. |
|
|
|
Class A common shares outstanding after this
offering1 |
|
56,784,519 |
|
|
|
Concurrent offering |
|
Concurrently with this offering, we are offering $75,000,000
aggregate principal amount of senior subordinated convertible
notes. Neither this offering, nor the concurrent offering, is
contingent on the completion of the other. See Concurrent
offering. |
|
|
|
Use of proceeds |
|
We estimate that the net proceeds from this offering will be
approximately $102.6 million (or approximately
$118.2 million if the underwriters exercise their
over-allotment option in full), after deducting underwriting
fees and estimated expenses relating to this offering and the
concurrent offering. We estimate that the net proceeds from the
concurrent offering will be approximately $72.0 million (or
approximately $82.8 million if the underwriters exercise
their over-allotment in full), after deducting underwriting
fees. We intend to use the net proceeds of this offering and the
concurrent offering to fund construction activities, equipment
purchases and ongoing development of Brisas. See Use of
proceeds. |
|
|
|
Stock exchange symbol |
|
Our common shares are listed on AMEX and on the TSX under the
symbol GRZ. |
|
|
1
|
We have also issued equity units,
warrants, and options which can be converted into common shares.
As at May 11, 2007, we had outstanding 1,085,099 equity
units and 2,514,139 stock options. Additionally, subject to
shareholder approval at the annual general meeting in June 2007,
we have extended until July 31, 2007 the expiry date of
2,680,500 Class A common share purchase warrants originally
scheduled to expire on November 6, 2006. For more
information refer to our audited financial statements for the
year ended December 31, 2006.
|
vii
|
|
|
U.S. and Canadian federal income tax considerations |
|
All holders are urged to consult their own tax advisors with
respect to the U.S. and Canadian federal, state, provincial,
territorial, local and foreign tax consequences of purchasing,
owning and disposing of the common shares. See Income tax
considerations. |
|
|
|
Potential investors that are U.S. Holders (as defined
below) should be aware that we believe we are currently a
passive foreign investment company, or PFIC, and we
expect to be a PFIC for all taxable years prior to the time
Brisas begins production. For more information on tax
considerations related to our PFIC status see Income tax
considerations Certain United States federal income
tax considerations. |
|
Risk factors |
|
See Risk factors in this prospectus for a discussion
of factors you should carefully consider before deciding to
invest in our common shares. |
viii
Risk
factors
Our securities should be considered a speculative investment
involving a high degree of risk due to the nature of our
business. Prospective investors should carefully consider all of
the information disclosed in this prospectus, including all
documents incorporated by reference, prior to making an
investment decision regarding our securities. The following risk
factors, as well as risks not currently known to us, could
materially adversely affect our business, financial condition
and results of operations and could cause actual events to
differ materially from those described in forward-looking
statements relating to us. In that event, the market price of
our securities could decline and an investor could lose all or
part of its investment.
Risks relating to
the Company
Our mining
assets are concentrated in Venezuela and our operations are
subject to inherent local risks.
Our exploration and development activities in Venezuela are
affected by certain factors, including those listed below, some
of which are beyond our control. Any one of these factors could
have a material adverse affect on our financial condition and
results of operations.
Political and
economic environment
All of our mineral properties are located in Venezuela and, as
such, we are subject to political and economic risks, including:
|
|
|
the effects of local political, labor and economic developments,
instability and unrest;
|
|
significant or abrupt changes in the applicable regulatory or
legal climate;
|
|
corruption, requests for improper payments or other actions that
may violate Canadian and U.S. foreign corrupt practices
acts, uncertain legal enforcement and physical security;
|
|
limitations on mineral exports;
|
|
invalidation, confiscation, expropriation or rescission of
permits, authorizations, agreements, property rights or
governmental orders;
|
|
exchange controls and export or sale restrictions;
|
|
currency fluctuations and repatriation restrictions;
|
|
competition with companies from countries that are not subject
to Canadian and U.S. laws and regulations; and
|
|
laws or policies of foreign countries and Canada affecting
trade, investment and taxation.
|
The Venezuelan government has in the past exercised, and
continues to exercise, significant influence over what the
government considers to be strategic Venezuelan industries. For
example, on May 1, 2007, foreign oil companies agreed to
cede operational control of their projects to the Venezuelan
national oil company as demanded by the Venezuelan government.
These actions have created uncertainty about the business
environment in Venezuela for foreign companies. There can be no
assurance that the Venezuelan government will not take similar
measures relating to other sectors of the Venezuelan economy,
including foreign mining operations.
These risks may limit or disrupt any of our operations or result
in the deprivation of contractual rights or the taking of
property by nationalization, expropriation or other means
without fair compensation. We do not currently maintain any
insurance covering losses or obligations related to political
risks and will only do so in the future if it is available on a
cost-effective basis.
1
Required permits
or authorizations for Brisas
We are dependent on Venezuelan regulatory authorities issuing to
us various permits and authorizations relating to Brisas that we
require prior to completing construction of, and subsequently
operating, Brisas. Consistent with other mining projects of this
magnitude and in addition to permits or authorizations that must
be received from the MINAMB, we need to receive a number of
other permits or authorizations from various local, state and
federal agencies.
In early 2007 the MINAMB accepted the ESIA, which is the basis
for the issuance of all MINAMB permits and authorizations that
we require to ultimately exploit the gold and copper
mineralization at Brisas. On March 27, 2007, the MINAMB
issued to us the Authorization for the Affectation of Natural
Resources for the Construction of Infrastructure and Services
Phase of Brisas, which allow us to commence certain
infrastructure and construction activities at or near the mine
site. We can give no assurance that the issuance of additional
local, state and federal permits and authorizations that we
require for Brisas will not be delayed or withheld, or that any
existing rights or approvals already issued or granted to us for
our operations in Venezuela will not be rescinded or otherwise
challenged. The reasons for any such action could relate to a
number of factors noted in this prospectus and in the documents
incorporated by reference in this prospectus, some of which are
outside of our control. As a result, we are unable to provide
any assurance as to if and when the remaining required
Venezuelan permits and authorizations will be issued to us.
Failure to obtain any permit or authorization required for the
construction or operation of Brisas would result in a material
adverse affect on our financial condition and results of
operations.
Government review
of contracts and concessions for compliance
In 2005, the Venezuelan government announced that it intended to
review all foreign investments in non-oil basic industries,
including gold projects. As part of that review, the Venezuelan
government announced that it would be changing the
countrys existing mining title regime to a system where
all new economic interests would be granted in the
form of joint ventures or operating contracts. In order to
effect this change, a new draft mining law was submitted to the
National Assembly which provided, among other things, for the
control of primary mining activities exclusively by the state.
This would occur either directly through a national mining
company or via a joint venture with private entities in which
the state would hold more than 50% of the capital stock of the
joint venture. The Venezuelan government also announced that it
would review existing concessions and contracts to determine if
the holder was in compliance with the existing terms and
conditions of such concessions and contracts and whether the
holder was entitled to continue their original work under the
original terms and conditions and qualify under the new regime.
Although we believe that all of our properties are in compliance
with applicable regulations, the formal public announcement of
the results of the compliance review has not been made and it is
unclear when such formal public announcement will take place or
whether the final policy when announced will be consistent with
prior public statements. In addition, the draft mining law has
yet to be enacted and implemented. Although we believe the draft
law does not propose to extinguish pre-existing mining
concessions that are in compliance with and granted under
previous mining legislation, such as those held by us, it is
unclear what provisions the final law will contain, if or when
they will be enacted, or how those final provisions will impact
our operations in Venezuela in the future. Among other things,
this law when enacted
2
may adversely affect our ability to renew, or otherwise render
unenforceable the renewal clauses contained in, any or all of
our mining concessions. If the renewal of any of our significant
concessions relating to Brisas is denied, this would have a
material adverse effect on us. Until the draft law is finalized
and enacted, the previous mining legislation remains in force.
We cannot provide any assurance that the creation of a state
mining company will not materially adversely affect our ability
to develop and operate our Venezuelan properties (including our
ability to renew our mining concessions) or that we will not be
required to enter into a joint-venture that is controlled by the
Venezuelan government in order to develop and operate Brisas.
Currency and
exchange controls
In 2003, the Central Bank of Venezuela (BCV) enacted
exchange control regulations as a measure to protect
international reserves. Since March 2005, the official exchange
rate has been set at approximately 2,150 Venezuelan Bolivars per
U.S. dollar. The Venezuelan government has also introduced
regulations concerning exports from Venezuela, which currently
require all goods and services to be invoiced in the currency of
the country of destination or in U.S. dollars. Although
these regulations have not to date adversely affected our
operations as we primarily transfer funds into Venezuela for our
operations, this will change in the future to the extent that we
begin producing and exporting gold and copper from Venezuela. We
are unable to predict at this time the future impact, if any,
that these currency and exchange controls will have on our
future operations. Both future fluctuations of the Venezuelan
Bolivar against the U.S. dollar as well as exchange
controls could negatively impact our financial condition.
The BCV allows gold mining companies to sell up to 85% of their
production on the international market. The remaining 15% may be
required by the government to be sold domestically at the
current market price, which is paid in Venezuelan currency. Gold
sold domestically to BCV is assessed a maximum tax of 1% of the
value of gold as compared to the amount stated in the mining
law. At this time there is no requirement to sell copper
domestically but we cannot be sure that the government will not
require domestic sales of copper in the future.
Unauthorized
small miners
Although we are not aware of any unauthorized small miners
currently located on Brisas, a significant number of
unauthorized small miners have from time to time occupied
various properties near or adjacent to Brisas. The methods used
by the small miners to extract gold from surface material are
typically environmentally unsound and in general their presence
can be disruptive to the rational development of a mining
project such as Brisas. Notwithstanding that we maintain a
security presence and have implemented other procedures to
mitigate the risk that the small miners might try to occupy
Brisas, we can give no assurances that such activities will not
occur in the future.
Imataca forest
reserve
Brisas is located within the boundaries of the 3.75 million
hectare Imataca Forest Reserve (the Imataca Forest)
in an area presently approved by Presidential Decree for mining
activities. On September 22, 2004, after public
consultation, Presidential Decree 3110 was published in the
Official Gazette identifying approximately 12% of the Imataca
Forest in south-eastern Venezuela to be used for mining
activities. Decree 3110 was issued in response to legal
challenges to prior Presidential Decree 1850, which opened an
even larger part of the Imataca Forest to mining and
3
other activities and which had become subject to a legal
challenge before the Venezuelan Supreme Court. In 1997, the
Venezuelan Supreme Court issued a cautionary pronouncement as an
interim measure pending a final ruling ordering the MIBAM to
abstain from granting concessions, authorization or other acts
relating to mining exploration or exploitation in the Imataca
Forest.
We have been advised that the legal proceeding before the
Venezuelan Supreme Court became moot upon the issuance of Decree
3110. Although since the issuance of Decree 3110, the MIBAM has,
on a selective basis, issued concessions, authorizations and
other acts relating to mining exploration or exploitation in the
Imataca Forest, we can give no assurances, given that the legal
proceeding has not been formally terminated in the Venezuelan
Supreme Court, that the MIBAM will, in the future, issue permits
or authorizations required to complete construction of, and
subsequently operate, Brisas.
Venezuelan
environmental laws and regulations
Venezuela maintains environmental laws and regulations for the
mining industry that impose specific obligations on companies
doing business in the country. The MINAMB, which administers
Venezuelan environmental laws and regulations, proscribes
certain mining recovery methods deemed harmful to the
environment and monitors mining activities to ensure compliance.
Venezuelas environmental legislation provides for the
submission and approval of environmental impact statements for
certain operations and provides for restrictions and
prohibitions on spills, releases or emissions of various
substances produced in association with certain mining industry
operations, such as seepage from tailings disposal areas, which
could result in environmental pollution. A breach of current or
future environmental legislation may result in the imposition of
fines and penalties or the suspension or closure of any future
operations, the extent of which cannot be predicted. Insurance
covering losses or obligations related to environmental
liabilities is not maintained and will only be maintained in the
future if available on a cost-effective basis. Although we
believe that we have adopted a high standard of environmental
compliance, failure to comply with or unanticipated changes in
such laws and regulations in the future could have a material
adverse impact on our financial condition and results of
operations.
Challenges to
mineral property titles or contract rights
Acquisition of title or contract rights to mineral properties is
a very detailed and time-consuming process under Venezuelan law.
Mining properties sometimes contain claims or transfer histories
that examiners cannot verify, and transfers can often be
complex. From 1992 to late 1994 we were involved in a lawsuit
relating to the ownership of Brisas. We successfully defended
our ownership rights in the Venezuelan courts and subsequently
settled the lawsuit for a substantial sum. Although we believe
that we have the necessary title and rights to all of the
properties for which we hold concessions or other contracts and
leases, we cannot be certain that someone will not challenge or
impugn title or contract rights to such properties in the future
or whether such challenges will be by third parties or a
government agency. We do not carry title insurance with respect
to our mineral properties. A claim that we do not have title or
contract rights to a property could have an adverse impact on
our business in the short-term, and a successful claim that we
do not have title or contract rights to a property could cause
us to lose our rights to build infrastructure on or mine that
property, perhaps without compensation for our prior
expenditures relating to that property.
4
In addition to the Brisas alluvial and hardrock concessions, we
have also applied to the appropriate government agencies for
various contracts, land use agreements and easements allowing
the use of certain land parcels contiguous to and nearby Brisas
for operational and infrastructure needs. Although these
applications were contained in an operating plan that has
already been approved by the appropriate regulatory agencies, we
can give no assurances when such applications will be approved,
if ever.
Compliance with
other laws and regulations
In addition to being subject to environmental laws and
regulations, our activities are subject to extensive laws and
regulations governing health and worker safety, employment
standards, waste disposal, protection of historic and
archaeological sites, explosives, mine development and
protection of endangered and protected species and other
matters. We are required to have a wide variety of permits from
governmental and regulatory authorities to carry out our
activities. Obtaining the necessary permits is critical to our
business.
Obtaining and maintaining permits is a complex, time consuming
process and, as a result, we cannot assess whether necessary
permits will be obtained or maintained on acceptable terms, in a
timely manner or at all. The failure of the Venezuelan
government to approve the required permits or authorizations
could have a material adverse impact on our future operating
results. Any failure to comply with applicable laws and
regulations or the failure to obtain or maintain permits or
authorizations, even if inadvertent, could result in the
interruption of our operations or civil or criminal fines or
penalties or enforcement actions, including orders issued by
authorities enjoining or curtailing operations or requiring
corrective measures, any of which could result in us incurring
significant expenditures.
Our future
results depend on Brisas.
We depend on a single project, Brisas, which is a development
stage project and which may never be developed into a
commercially viable ore body. Any adverse event affecting
Brisas, or our ability to finance
and/or
construct and operate this project, would have a material
adverse impact on our financial condition and results of
operations.
We do not
currently, and may never, have sufficient funds to develop our
mineral properties, including Brisas.
We have limited financial resources. As of April 30, 2007,
we had approximately $21 million in cash and investments.
We currently do not generate revenue from operations and have
historically financed operating activities primarily from the
sale of common shares or other equity securities. In the
near-term, we believe that cash and investment balances are
sufficient to enable us to fund our construction activities into
2008 (excluding any substantial Brisas construction activities).
The completion of, and the amount of the proceeds raised in,
this offering and the concurrent offering will directly affect
our ability to carry out our plans for further development of
Brisas. Specifically, if we do not successfully complete both
this offering and the concurrent offering, or if we receive less
than the total amount of proceeds we seek to raise in this
offering or the concurrent offering, we may not have sufficient
funding to carry out all of the planned purchases and
development regardless of whether we receive any additional
required permits or authorizations that would otherwise allow us
to proceed with additional development or, ultimately,
exploitation. See Use of proceeds. We cannot provide
any assurance that we will be able to complete this offering or
the concurrent offering or, if
5
completed, whether we will raise the total amount contemplated.
We also believe that, in addition to the proceeds we are seeking
to raise through this offering and the concurrent offering, we
will need additional funding to complete construction of and
begin mining, Brisas. We cannot provide any assurance that we
will be able to obtain the additional funding that will be
needed to construct Brisas on acceptable terms, or at all. If
sufficient financing is not available, we will be unable to
complete construction and begin operating Brisas.
Actual capital
costs, operating costs, production and economic returns may
differ significantly from those we have anticipated and there
are no assurances that our development activities will result in
profitable mining operations.
The Brisas Report contemplates an overall capital expenditure
relating to Brisas of approximately $638 million, excluding
value added taxes and import duties which could total as much as
$50 million. Although we are in the process of preparing
applications for tax exonerations or payment holidays for
certain taxes which are provided for by law, including value
added tax and import duty tax on the initial capital costs,
there can be no assurances that those exonerations and payment
holidays will be obtained. This would result in an increase in
the initial capital required to place Brisas into production.
Although actual costs will not be known until firm equipment
orders are placed with suppliers, due to the passage of time and
increases in the cost of certain mine equipment and components
of the milling facility, we expect overall capital expenditures
relating to Brisas to increase.
The Brisas Report was completed to update the economic viability
of the Brisas mineralized deposit. Many factors are involved in
the determination of the economic viability of mining a
mineralized deposit, including the delineation of satisfactory
mineral reserve estimates, the level of estimated metallurgical
recoveries, capital and operating cost estimates, construction,
operation, permit and environmental requirements, and the
estimate of future gold and copper prices. In particular, recent
increases in gold prices have led to increases in mining
exploration, development and construction activities, which have
resulted in increased demand for, and cost of, exploration,
development and construction services, personnel and equipment.
This could cause our project costs to increase materially and
result in delays if services, personnel or equipment cannot be
obtained in a timely manner. In addition, we may experience
potential scheduling difficulties and cost increases to the
extent that we need to coordinate the availability of services,
personnel or equipment. Capital and operating cost estimates are
based upon many factors, including anticipated tonnage and
grades of ore to be mined and processed, the configuration of
the ore body, ground and mining conditions and anticipated
environmental and regulatory compliance costs and continued low
energy costs. Each of these factors involves uncertainties and
the making of assumptions and, as a result, we cannot give any
assurance that the Brisas Report will prove accurate with
respect to construction and development of Brisas or that any
key finding or underlying assumption will not prove to be
inaccurate for reasons outside of our control, including changes
in costs as a result of the passage of time between the
completion of the Brisas Report and the date any construction
commences. It is not unusual in new mining operations to
experience unexpected problems during development. As a result,
the actual cost and time of placing Brisas into production could
differ significantly from estimates contained in Brisas Report.
Likewise, should Brisas be developed, actual operating results
may differ from those originally anticipated.
6
There are
differences in U.S. and Canadian practices for reporting
reserves and resources.
Our reserve and resource estimates are not directly comparable
to those made by companies subject to SEC reporting and
disclosure requirements, as we generally report reserves and
resources in accordance with Canadian practices. These practices
are different from the practices used to report reserve and
resource estimates in reports and other materials filed with the
SEC. It is Canadian accepted practice to report measured,
indicated and inferred resources, which are not permitted in
disclosure filed with the SEC by United States domestic issuers.
In the United States, mineralization may not be classified as a
reserve unless the determination has been made that
the mineralization could be economically and legally produced or
extracted at the time the reserve determination is made.
Prospective United States investors are cautioned not to assume
that all or any part of measured or indicated resources will
ever be converted into reserves. Further, inferred
resources have a great amount of uncertainty as to their
existence and as to whether they can be mined legally or
economically. Disclosure of contained ounces is
permitted disclosure under Canadian securities laws; however,
the SEC only permits issuers to report resources as
in place tonnage and grade without reference to unit measures.
Accordingly, information concerning descriptions of
mineralization, reserves and resources contained in this
prospectus may not be comparable to information made public by
domestic United States companies subject to the reporting and
disclosure requirements of the SEC. See Cautionary note to
United States investors.
Actual
mineralization may vary from current estimates in the
future.
Unless otherwise indicated, mineralization figures presented in
this prospectus and in our filings with securities regulatory
authorities, press releases and other public statements that may
be made from time to time are based upon estimates made by
independent geologists and our internal geologists. When making
determinations about whether to advance any of our projects to
development, we must rely upon such estimated calculations as to
the mineral reserves and grades of mineralization on our
properties. Until ore is actually mined and processed, mineral
reserves and grades of mineralization must be considered only as
estimates. These estimates are imprecise and depend upon
geological interpretation and statistical inferences drawn from
drilling and sampling analysis that may prove to be unreliable.
These estimates may require adjustments or downward revisions
based upon actual production experience. In addition, due to
geologic variations within areas mined, the grade of ore
ultimately mined, if any, may differ from that indicated by the
Brisas Report and drill results. There can be no assurance that
minerals recovered in small-scale tests will be duplicated in
large scale tests under
on-site
conditions or in production scale. Actual quality and
characteristics of deposits cannot be fully assessed until
mineralization is actually mined and, as a result, mineral
reserves may change over time to reflect actual experience.
The resource estimates contained in this prospectus have been
determined and valued based on assumed future prices, cut-off
grades and operating costs that may prove to be inaccurate.
Extended declines in market prices for gold or copper may render
portions of our mineralization uneconomic and result in reduced
reported mineralization or may adversely affect the commercial
viability of Brisas or our other properties. Any material
reductions in estimates of mineralization, or of our ability to
extract this mineralization, could have a material adverse
effect on our financial condition and results of operations.
7
Risks inherent
in the mining industry could have a significant impact on our
future operations.
Gold and copper projects are subject to all of the risks
inherent in the mining industry, including:
|
|
|
environmental hazards;
|
|
industrial accidents;
|
|
fires, flooding and high-wall failure;
|
|
inability to obtain suitable or adequate machinery, equipment or
labor;
|
|
unusual or unexpected geologic formations; and
|
|
periodic interruptions due to inclement or hazardous weather
conditions.
|
These risks could result in damage to, or destruction of,
mineral properties and production facilities, personal injury,
environmental damage, delays, monetary losses and legal
liability. Insurance covering such catastrophic liabilities is
not maintained and will only be maintained in the future if
available on a cost-effective basis.
Operating
losses are expected to continue until we construct an operating
mine.
We have experienced losses from operations for each of the last
five years as the result of, among other factors, expenditures
associated with corporate activities on Brisas, as well as other
unrelated non-property expenses that are recorded in our
consolidated statement of operations. We expect this trend to
continue until sometime after Brisas is operational. In
addition, such losses may increase after this offering if we
obtain additional financing and begin substantial construction
of Brisas. Although this trend is expected to reverse if and
when gold and copper are produced at Brisas in commercial
quantities at prices equal to or in excess of the prices assumed
in Brisas Report, we can give no assurances that this trend will
ultimately be reversed as a result of any operations at Brisas.
If we complete
the concurrent offering, we will incur a substantial amount of
debt. This debt will not restrict our ability to incur
additional debt. We intend to incur substantially more debt to
complete the development and construction of Brisas. Our
leverage may prevent us from fulfilling our obligations, and any
default on our obligations could have a material adverse effect
on our business, financial condition and results of
operations.
We expect to issue our senior subordinated convertible notes in
the aggregate principal amount of $75 million. We also
expect to incur substantial additional indebtedness to finance
the construction and development of Brisas, which we expect will
be secured by substantially all the assets of Brisas, our
principal asset. As a result, we will be highly leveraged before
we produce revenue from mining operations. Our leverage will
require us to devote a substantial portion of our cash flow from
operations for the payment of interest, which will reduce our
ability to fund working capital, capital expenditure and other
liquidity requirements. If we cannot generate cash flow from
operations, we may lack the ability to service our debt and we
may not be able to restructure our existing debt. Any event of
default under the senior subordinated convertible notes or our
other indebtedness could result in our bankruptcy or other
insolvency. Our secured creditors would have the right to be
paid in full before our other creditors, and our other creditors
would have the right to be paid before any distribution could be
made to our common shareholders.
8
We may incur
costs in connection with future reclamation activities that may
have a material adverse effect on our earnings and financial
condition.
We are required to obtain government approval of our plan to
reclaim Brisas after any minerals have been mined from the site.
The Brisas reclamation plan has been incorporated into the
environmental studies submitted to the MINAMB. Reclaiming Brisas
is expected to take place during and after the active life of
the mine. In accordance with applicable laws, bonds or other
forms of financial assurances have been provided by us to
guarantee compliance with environmental and social measures
designed to mitigate, reduce or eliminate the impact of our
permitted activities for the initial phase of construction. We
will provide additional bonds for the reclamation of the mine.
We may incur costs in connection with these reclamation
activities in excess of such bonds or other financial
assurances, which costs may have a material adverse effect on
our earnings and financial condition. We expect to establish a
reserve for future site closure and mine reclamation costs based
on the estimated costs to comply with existing reclamation
standards. There can be no assurance that our reclamation and
closure accruals will be sufficient or that we will have
sufficient financial resources to fund such reclamation and
closure costs in the future.
The volatility
of the price of gold and copper could have a negative impact
upon our current and future operations.
The price of gold and copper has a significant influence on the
market price of our common shares and our business activities.
Fluctuation in gold and copper prices directly affects, among
other things, the overall economic viability of Brisas, our
ability to obtain sufficient financing required to construct
Brisas, including the terms of any such financing, and the
calculation of reserve estimates. The price of gold is affected
by numerous factors beyond our control, such as the level of
inflation, interest rates, fluctuation of the U.S. dollar
and foreign currencies, supply and demand, sale of gold by
central banks and other holders and the political and economic
conditions of major gold producing countries throughout the
world. Copper prices also fluctuate and are generally affected
by global and regional demand and existing inventories. As of
May 11, 2007, the COMEX closing price for gold was $670.10
per ounce and the closing price for copper was $3.61 per pound
as reported by the London Metal Exchange. The following table
sets forth the average of the daily closing price for gold and
copper for the periods indicated as reported by the London Metal
Exchange:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended
December 31,
|
|
|
|
|
|
5
yr. avg.
|
|
2006
|
|
2005
|
|
2004
|
|
2003
|
|
2002
|
|
|
Gold ($ per ounce)
|
|
$
|
426
|
|
$
|
603
|
|
$
|
445
|
|
$
|
410
|
|
$
|
363
|
|
$
|
310
|
Copper ($ per pound)
|
|
$
|
1.51
|
|
$
|
3.05
|
|
$
|
1.67
|
|
$
|
1.30
|
|
$
|
0.81
|
|
$
|
0.71
|
|
Future hedging
activities could negatively impact future operating
results.
We have not entered into forward contracts or other derivative
instruments to sell gold or copper that we may produce in the
future. Although we have no near term plans to enter into such
contracts or derivative instruments, we may do so in the future
if required for project financing. Forward contracts obligate
the holder to sell hedged production at a price set when the
holder enters into the contract, regardless of what the price is
when the product is actually mined. Accordingly, there is a risk
that the price of the product is higher at the time it is mined
than when we enter into the contracts, so that the product must
be sold at a price lower than
9
that which could have been realized had we not entered into the
contract. We may enter into option contracts for gold and copper
to mitigate the effects of such hedging.
As a foreign
private issuer, we are permitted to file less information with
the SEC than a company incorporated in the United
States.
We are a foreign private issuer under the United States
Securities Exchange Act of 1934, as amended (the
U.S. Exchange Act) and, as a result, are exempt
from certain rules under the U.S. Exchange Act. These rules
include the proxy rules that impose certain disclosure and
procedural requirements for proxy solicitations. In addition, we
are not required to file periodic reports and financial
statements with the SEC as frequently, promptly or in as much
detail as U.S. companies with securities registered under
the U.S. Exchange Act. We are not required to file
financial statements prepared in accordance with U.S. GAAP
(although we are required to reconcile our financial statements
to U.S. GAAP). We are not required to comply with
Regulation FD, which imposes certain restrictions on the
selective disclosure of material information. Moreover, our
officers, directors and principal shareholders are exempt from
the reporting and short-swing profit recovery provisions of
Section 16 of the U.S. Exchange Act and the rules
under the U.S. Exchange Act with respect to their purchases
and sales of our common shares.
We expect to
lose our foreign private issuer status as a result of this
offering.
We expect to lose our foreign private issuer status as a result
of this offering. If a majority of our common shares are not
held directly or indirectly by non-residents of the United
States, we will no longer be exempt from the rules and
regulations discussed above and, among other things, we will not
be eligible to use the multijurisdictional disclosure system
adopted by the United States and Canada or other foreign issuer
forms and will be required to file periodic reports, proxy
statements and financial statements as if we were a company
incorporated in the United States. We will also lose the ability
to rely upon exemptions from AMEX corporate governance
requirements that are available to foreign private issuers. The
costs, expenses and burdens incurred in fulfilling these
additional regulatory requirements are expected to be
significant.
Changes in
critical accounting estimates could adversely affect our
financial results.
Our most significant accounting estimate relates to the carrying
value of Brisas, which is more fully discussed in our annual
financial statements and related footnotes, which are
incorporated by reference into this prospectus. Although we
regularly review the net carrying value of our mineral
properties, estimates of mineral prices, recoverable proven and
probable reserves, and operating, capital and reclamation costs
are subject to certain risks and uncertainties that may affect
the recoverability of mineral property costs. Where estimates of
future net cash flows are not available and where other
conditions suggest impairment, we assess if carrying value can
be recovered. Although we have made our best estimate of these
factors as they relate to our mineral properties, it is possible
that changes could occur in the near-term, which could adversely
affect the future net cash flows to be generated from the
properties.
Material
weaknesses relating to our internal controls over financial
reporting could adversely affect our financial results or
condition and share price.
While we believe there are no reportable material weaknesses in
our internal controls as defined in Section 404 of the
Sarbanes-Oxley Act of 2002 as of the date of this prospectus,
there
10
can be no assurance that material weaknesses regarding our
internal controls will not be discovered in the future. If so,
this could result in costs to remediate such controls or
inaccuracies in our financial statements. In addition, a
material weakness in internal controls over financial reporting
may result in increased difficulty or expense in transactions
such as financings, and may result in an adverse reaction by the
market generally that would result in a decrease of our share
price. We must, for our fiscal year ending December 31,
2007, begin to comply with additional requirements of
Section 404 with which we have not previously been required
to comply. Among other things, this will require our external
auditors to issue an opinion on the adequacy of
managements assessment and their own assessment of the
effectiveness of our internal controls over financial reporting.
Attracting and
retaining key personnel in the future could have a significant
impact on future operating results.
We are and will be dependent upon the abilities and continued
participation of key management personnel, as well as the
significant number of new personnel that will be necessary to
manage any construction and operation of Brisas. If the services
of our key employees were lost or we are unable to obtain the
new personnel necessary to construct, manage and operate Brisas,
it could have a material adverse effect on future operations.
We may
experience difficulties managing our anticipated
growth.
We anticipate that if we construct Brisas and put it into
production, we will experience significant growth in our
operations resulting in increased demands on our management,
internal controls and operating and financial systems. There can
be no assurance that we will successfully meet these demands and
effectively attract and retain additional qualified personnel to
manage our anticipated growth. The failure to manage growth
effectively could have a material adverse impact on our
business, financial condition and results of operations.
Risks related to
our common shares
Sales of a
significant number of our common shares in the public markets,
or the perception of such sales, could depress the market price
of our common shares.
Sales of a substantial number of our common shares in the public
markets could depress the market price of our common shares and
impair our ability to raise capital through the sale of
additional equity securities. We cannot predict the effect that
future sales, or the perception of such sales, of our common
shares would have on the market price of our common shares.
We may raise
funds for future operations through the issuance of common
shares, debt instruments convertible into common shares or other
equity-based instruments, and such financings would result in
the dilution of present and prospective shareholdings (including
through this offering and the concurrent
offering).
In order to finance the construction of Brisas, we may raise
additional funds through the issuance of common shares, debt
instruments convertible into common shares or other equity-based
instruments, such as warrants. We cannot predict the size of any
such future issuances of securities, or the effect, if any, that
future issuances and sales of our securities will have on the
market price of our common shares. Any transaction involving the
issuance of previously
11
authorized but unissued shares, or securities convertible into
shares, will result in dilution, possibly of a substantial
nature, to present and prospective holders of shares.
We expect to raise additional funds through a public offering of
$75,000,000 aggregate principal amount of senior subordinated
convertible notes. See Concurrent offering. While we
cannot predict the effect that the issuance and sale of these
securities may have on the market price of our common shares,
the issuance of common shares upon conversion of these notes
could have a negative effect on the market price of our common
shares. In addition, any of these issuances would result in
dilution, possibly of a substantial nature, to present and
prospective holders of our common shares.
Our senior
subordinated convertible notes will be convertible into our
common shares, and we may repay these notes in some
circumstances by issuing our common shares.
If we issue our senior subordinated convertible notes, they will
be convertible by the holders, and, in certain circumstances, we
may force the conversion of the notes into our common shares. In
certain circumstances, we will be required to issue shares to
the holders of our senior subordinated convertible notes at a
conversion price which could be less than our then market price.
Conversion into our common shares could dilute your interest in
our company.
The price of
the common shares may be volatile.
The common shares are publicly traded and are subject to various
factors that have historically made their price volatile.
During the fiscal year ended December 31, 2006, the sale
price of our common shares on the TSX and AMEX ranged from
Cdn.$3.40 to Cdn.$11.05 and US$2.99 to US$9.75 per share,
respectively, and the closing sale price on May 11, 2007
was Cdn.$7.67 and US$6.89 per share, respectively. The market
price of the common shares on the TSX and AMEX could fluctuate
significantly in the future, in which case common shares
purchased pursuant to this offering may not be able to be resold
at or above the offering price. The market price of the common
shares may fluctuate based on a number of factors, including:
|
|
|
economic and political developments in Venezuela, including any
new regulatory rules or actions;
|
|
our operating performance, and financial condition and the
performance of competitors and other similar companies;
|
|
the publics reaction to our press releases, other public
announcements and our filings with the various securities
regulatory authorities;
|
|
the price of gold and copper and other metal prices, as well as
metal production volatility;
|
|
changes in recommendations by research analysts who track our
common shares or the shares of other companies in the resource
sector;
|
|
changes in general economic conditions;
|
|
the number of the common shares to be publicly traded after this
offering;
|
|
the arrival or departure of key personnel;
|
|
acquisitions, strategic alliances or joint ventures involving us
or our competitors;
|
|
the publics reaction to press releases and other public
announcements of our competitors regarding mining development or
other matters;
|
|
general worldwide and overall market perceptions of the
attractiveness of particular industries;
|
12
|
|
|
the dilutive effect of the sale by us of significantly more
common shares in order to finance our activities; and
|
|
other factors listed under Cautionary statement regarding
forward-looking statements.
|
In addition, the market price of the common shares is affected
by many variables not directly related to our performance and
that are therefore not within our control. These include other
developments that affect the market for all resource sector
shares, the breadth of the public market for the common shares,
and the attractiveness of alternative investments. The effect of
these and other factors on the market price of the common shares
on the TSX and AMEX has historically made our share price
volatile and suggests that our share price will continue to be
volatile in the future.
We do not
intend to pay any cash dividends in the foreseeable
future.
We have not declared or paid any dividends on our common shares
since 1984. We intend to retain earnings, if any, to finance the
growth and development of our business and do not intend to pay
cash dividends on the common shares in the foreseeable future.
Any return on an investment in our common shares will come from
the appreciation, if any, in the value of the common shares. The
payment of future cash dividends, if any, will be reviewed
periodically by our board of directors and will depend upon,
among other things, conditions then existing including earnings,
financial condition and capital requirements, restrictions in
financing agreements, business opportunities and conditions and
other factors.
Additional
risks
We have
determined that we are currently a passive foreign
investment company under the U.S. Internal Revenue
Code and, as a result, there may be adverse U.S. tax
consequences for certain investors.
Potential investors that are U.S. Holders, as defined under
Income tax considerationsCertain United States
federal income tax considerationsU.S. Holders,
should be aware that we have determined that we were a
passive foreign investment company under
Section 1297(a) of the U.S. Internal Revenue Code for
the taxable year ended December 31, 2006 and that we expect
to be a passive foreign investment company for the
taxable year ending December 31, 2007. Moreover, we expect
to be a passive foreign investment company for each
taxable year prior to the year in which Brisas begins
production. As a result, a U.S. Holder generally will be
subject to adverse U.S. federal income tax consequences,
such as (i) being subject to U.S. federal income tax
at the highest rates applicable to ordinary income on at least a
portion of any excess distribution and gain on the
sale of common shares, as well as incurring an interest charge
on the tax due thereon, or (ii) at the election of the
U.S. Holder, current taxation on either (A) certain
income or gains of the company, regardless of whether any cash
representing such income or gain has been distributed, or
(B) any increase in the fair market value of the common
shares as of the taxable year end, regardless of whether such
gain has been realized on a disposition of such common shares.
These adverse U.S. federal income tax consequences are
described more fully under Income tax
considerationsCertain United States federal income tax
considerationsU.S. federal income tax consequences to
U.S. Holders of the acquisition, ownership and disposition of
common sharesPassive foreign investment company.
We do not believe that any of our subsidiaries were
passive foreign investment companies as to any
shareholder of the company for the taxable year ended
December 31, 2006, and we do
13
not expect that any such subsidiaries will be passive
foreign investment companies as to any shareholder of the
company for any subsequent taxable year (including the taxable
year ending December 31, 2007). Additional adverse tax
consequences could result to U.S. Holders of the common
shares for any taxable year in which we are a passive
foreign investment company and we have one or more
non-U.S. subsidiaries
that is also a passive foreign investment company as
to such U.S. Holders. These adverse consequences are
described more fully under Income tax
considerationsCertain United States federal income tax
considerationsU.S. federal income tax consequences to
U.S. Holders of the acquisition, ownership and disposition
of common shares.
The determination of whether we and any of our subsidiaries will
be a passive foreign investment company for a future
taxable year (including the taxable year in which Brisas begins
production or any subsequent taxable year) will depend on
(i) the application of complex U.S. federal income tax
rules, which are subject to differing interpretations, and
(ii) our assets and income, and our subsidiaries
assets and income, over the course of each such taxable year. As
a result, our status and the status any of our subsidiaries as a
passive foreign investment company in any future
taxable year cannot be predicted with certainty as of the date
of this prospectus. Accordingly, there can be no assurance that
we and any subsidiary will not be a passive foreign
investment company for any future taxable year, including
years after Brisas begins production.
The passive foreign investment company rules are
complex. A potential investor should consult its own financial
advisor, legal counsel or accountant regarding the application
of the passive foreign investment company rules on
an investment in common shares.
Investors in
the United States or in other jurisdictions outside of Canada
may have difficulty bringing actions and enforcing judgments
against us, our directors, our executive officers and some of
the experts named in this prospectus based on civil liability
provisions of federal securities laws or other laws of the
United States or any state thereof or the equivalent laws of
other jurisdictions of residence.
We are organized under the laws of the Yukon Territory, Canada.
Some of our directors and officers, and some of the experts
named in this prospectus, are residents of Canada or otherwise
reside outside of the United States, and all or a substantial
portion of their assets, and a substantial portion of our
assets, are located outside of the United States. As a result,
it may be difficult for investors in the United States or
outside of Canada to bring an action in the United States
against directors, officers or experts who are not resident in
the United States. It may also be difficult for an investor to
enforce a judgment obtained in a United States court or a court
of another jurisdiction of residence predicated upon the civil
liability provisions of Canadian securities laws or federal
securities laws or other laws of the United States or any state
thereof against us or those persons.
14
Cautionary
statement regarding
forward-looking statements
The information presented or incorporated by reference in this
prospectus contains both historical information and
forward-looking statements (including within the meaning of
Section 27A of the United States Securities Act of 1933, as
amended (the U.S. Securities Act), and
Section 21E of the U.S. Exchange Act. These
forward-looking statements involve risks and uncertainties, as
well as assumptions that, if they never materialize, prove
incorrect or materialize other than as currently contemplated,
could cause our results and the results of our consolidated
subsidiaries to differ materially from those expressed or
implied by such forward-looking statements.
Numerous factors could cause actual results to differ materially
from those in the forward-looking statements, including without
limitation the following:
|
|
|
Our mining assets are concentrated in Venezuela and our
operations are subject to inherent local risks;
|
|
Our future results depend on Brisas;
|
|
We do not currently, and may never, have sufficient funds to
develop our mineral properties, including Brisas;
|
|
Actual capital costs, operating costs, production and economic
returns may differ significantly from those we have anticipated
and there are no assurances that our development activities will
result in profitable mining operations;
|
|
Actual mineralization may vary from current estimates in the
future;
|
|
Risks inherent in the mining industry could have a significant
impact on our future operations;
|
|
Operating losses are expected to continue until we construct an
operating mine;
|
|
If we complete the concurrent offering, we will incur a
substantial amount of debt;
|
|
We may incur costs in connection with future reclamation
activities that may have a material adverse effect on our
earnings and financial condition;
|
|
The volatility of the price of gold and copper could have a
negative impact upon our current and future operations;
|
|
Future hedging activities could negatively impact future
operating results;
|
|
We expect to lose our foreign private issuer status as a result
of this offering;
|
|
Changes in critical accounting estimates could adversely affect
our financial results;
|
|
|
|
Material weaknesses relating to our internal controls over
financial reporting could adversely affect our financial results
or condition and share price;
|
|
|
|
Any inability to attract and retain key personnel in the future
could have a significant impact on future operating results; and
|
|
|
|
We may experience difficulties managing our anticipated growth.
|
This list is not exhaustive of the factors that may affect any
of our forward-looking statements. See Risk factors
beginning on page 1.
Statements concerning reserves and mineral resource estimates
may also be deemed to constitute forward-looking statements to
the extent that they involve estimates of the mineralization
that is expected to be encountered if the property is developed,
and, in the case of mineral reserves, such statements reflect
the conclusion based on certain assumptions that the mineral
deposit can be economically exploited.
15
The words believe, anticipate,
expect, intend, estimate,
plan, assume, positioned,
may, could and other similar expressions
or the negative of such expressions constitute forward-looking
statements and are predictions of or indicate future events and
future trends that do not relate to historical matters. Any such
forward-looking statements are not intended to give any
assurances as to future results.
Investors are cautioned not to put undue reliance on
forward-looking statements, and should not infer that there has
been no change in our affairs since the date of this prospectus
or the documents incorporated by reference in this prospectus
that would warrant any modification of any forward-looking
statement made in this document, other documents filed
periodically with securities regulators or documents presented
on our website. All subsequent written and oral forward-looking
statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by this cautionary
statement. We disclaim any intent or obligation to update
publicly these forward-looking statements, whether as a result
of new information, future events or otherwise, except as
required by applicable law. Investors are urged to read our
filings with U.S. and Canadian securities regulatory agencies,
which can be viewed online at www.sedar.com or
www.sec.gov. Additionally, investors can request a
copy of any of these filings directly from us as described
elsewhere in this prospectus. See Documents incorporated
by reference.
Exchange rate
information
The following table sets forth the rate of exchange for one
Canadian dollar, expressed in U.S. dollars, including the
average of such exchange rates for each period indicated and the
exchange rate at the end of such period, based upon the noon
buying rates provided by the Bank of Canada:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended
December 31,
|
|
|
|
U.S. dollar
per one Canadian dollar
|
|
2006
|
|
2005
|
|
2004
|
|
2003
|
|
2002
|
|
|
Average rate per period
|
|
$
|
0.8815
|
|
$
|
0.8254
|
|
$
|
0.7684
|
|
$
|
0.7138
|
|
$
|
0.6369
|
Rate at end of period
|
|
$
|
0.8674
|
|
$
|
0.8598
|
|
$
|
0.8319
|
|
$
|
0.7713
|
|
$
|
0.6339
|
|
The noon buying rate on May 11, 2007 as reported by the
Bank of Canada for the conversion of Canadian dollars into
United States dollars was Cdn.$1.00 equals $0.8981.
Use of
proceeds
We estimate that the net proceeds from this offering will be
approximately $102.6 million, based on an assumed public
offering price of $6.89, which was the closing price of our
common shares on AMEX on May 11, 2007 (or approximately
$118.2 million if the underwriters exercise their
over-allotment option in full), after deducting underwriting
fees and estimated expenses relating to this offering and the
concurrent offering. We estimate that the net proceeds from the
concurrent offering will be approximately $72.0 million (or
approximately $82.8 million if the underwriters exercise
their over-allotment in full), after deducting underwriting fees.
We expect to proceed with initial construction activities at
Brisas shortly after the completion of this offering. The
activities will include mobilization of SNC-Lavalin, our EPCM
contractor, pit dewatering, construction of a man-camp and
office complex, clearing and earthworks for the
16
mill site, and construction of a tailings management facility
footprint, eight sedimentation ponds, a power-line corridor, a
5.7 km conveyor belt and service road corridor, lay down
areas, a rock quarry, a sanitary fill and all other related mine
site preparation works. In addition we will continue key
activities related to the detailed engineering and the pursuit
of additional authorizations and permits. The timeline for the
activities covered by the recently approved permit is estimated
to be
14-16 months
at an estimated cost of approximately $100 million.
We intend to use the net proceeds from this offering and the
concurrent offering primarily to fund:
|
|
|
construction activities;
|
|
equipment purchases; and
|
|
|
|
ongoing development of Brisas;
|
including the more specific uses described above.
We anticipate an overall 30 month construction period for
Brisas and, assuming we receive the required exploitation permit
and appropriate authorizations, we expect commissioning and
achievement of commercial production shortly thereafter. Our
estimate of the capital cost for Brisas, as of April 2006, is
$638 million over the remaining construction period. Our
capital cost estimate excludes value added taxes and import
duties, which we expect will be refundable, but could total as
much as $50 million.
If we successfully complete this offering, the concurrent
offering or both, we will still require additional funding to
complete the Brisas project.
We currently expect to raise that additional funding primarily
through project debt financing and a combination of future
issuances of additional shares or debt instruments of the
Company. We have appointed Corporación Andina de Fomento,
Export Development Canada, UniCredit Group and WestLB AG as
mandated lead arrangers to arrange up to $425 million of
project debt for Brisas. See The Company
Project debt financing.
The actual amount that we expect to spend in connection with
each of our intended uses of proceeds may vary significantly
from the amounts that we currently anticipate, and will depend
on a number of factors, including those listed under Risk
factors. Pending the uses described above, we intend to
invest the net proceeds from this offering and the concurrent
offering in short-term, investment grade interest bearing
securities.
17
Share prices and
volume on the TSX and AMEX
Our common shares are traded on the TSX and on AMEX under the
symbol GRZ. Our equity units and the related
underlying securities are not listed for trading on any
exchange. The notes will not be listed on any exchange. The TSX
has conditionally approved the listing of the common shares
offered hereby and issuable upon conversion of all or a portion
of the notes offered in the concurrent offering. Listing is
subject to our fulfilling all of the requirements of the TSX on
or before August 3, 2007, including distribution of the
common shares to a minimum number of public securityholders.
Application has also been made to have the common shares offered
hereby and issuable upon conversion of all or a portion of the
notes offered in the concurrent offering listed on AMEX.
The information in the following table relates to the trading of
the common shares on the TSX and AMEX during 2006 and the first
four months of 2007:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
High
|
|
Low
|
|
Volume
|
|
High
|
|
Low
|
|
Volume
|
|
|
|
|
|
TSX
|
|
AMEX
|
2006
|
|
Canadian
dollar
|
|
U.S. dollar
|
|
|
January
|
|
$
|
7.35
|
|
$
|
3.40
|
|
|
2,700,338
|
|
$
|
6.58
|
|
$
|
2.99
|
|
|
5,291,600
|
February
|
|
|
7.05
|
|
|
4.95
|
|
|
1,390,950
|
|
|
6.20
|
|
|
4.40
|
|
|
2,665,600
|
March
|
|
|
7.00
|
|
|
5.25
|
|
|
1,055,803
|
|
|
5.97
|
|
|
4.55
|
|
|
2,021,700
|
April
|
|
|
11.05
|
|
|
6.90
|
|
|
2,977,832
|
|
|
9.75
|
|
|
5.91
|
|
|
9,374,400
|
May
|
|
|
10.36
|
|
|
6.80
|
|
|
3,590,201
|
|
|
9.37
|
|
|
6.11
|
|
|
10,777,800
|
June
|
|
|
8.72
|
|
|
4.28
|
|
|
1,767,413
|
|
|
7.94
|
|
|
3.82
|
|
|
8,405,100
|
July
|
|
|
6.52
|
|
|
4.52
|
|
|
497,791
|
|
|
6.00
|
|
|
4.23
|
|
|
3,084,400
|
August
|
|
|
5.89
|
|
|
4.76
|
|
|
934,309
|
|
|
5.10
|
|
|
4.29
|
|
|
2,702,400
|
September
|
|
|
5.72
|
|
|
4.32
|
|
|
947,399
|
|
|
5.01
|
|
|
3.78
|
|
|
3,271,900
|
October
|
|
|
4.80
|
|
|
4.08
|
|
|
448,883
|
|
|
4.15
|
|
|
3.62
|
|
|
1,862,700
|
November
|
|
|
6.48
|
|
|
4.51
|
|
|
1,136,648
|
|
|
5.73
|
|
|
3.97
|
|
|
3,775,300
|
December
|
|
|
6.30
|
|
|
5.17
|
|
|
1,232,798
|
|
|
5.59
|
|
|
4.50
|
|
|
2,609,800
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
January
|
|
|
5.88
|
|
|
3.95
|
|
|
1,348,048
|
|
|
5.00
|
|
|
3.33
|
|
|
3,800,900
|
February
|
|
|
6.70
|
|
|
4.71
|
|
|
1,416,193
|
|
|
5.74
|
|
|
4.09
|
|
|
4,320,849
|
March
|
|
|
8.65
|
|
|
4.70
|
|
|
3,199,476
|
|
|
7.18
|
|
|
4.00
|
|
|
7,604,081
|
April
|
|
|
8.72
|
|
|
7.17
|
|
|
3,782,243
|
|
|
7.61
|
|
|
6.20
|
|
|
7,380,700
|
|
On May 11, 2007, the closing price for our common shares was
Cdn$7.67 per share on the TSX and $6.89 per share on
AMEX.
Dividend
policy
We have not declared cash or share dividends since 1984 and have
no present plans to pay any cash or share dividends. We may
declare cash or share dividends in the future only if our
earnings and capital are sufficient to justify the payment of
such dividends.
18
Consolidated
capitalization
Since March 31, 2007 the date of the financial statements
for our most recently completed financial quarter, there have
been no material changes in our capitalization. The following
table sets forth our consolidated capitalization (i) as at
March 31, 2007; (ii) as at March 31, 2007 after
giving effect to this offering, but not the exercise of the
over-allotment option; and (iii) as at March 31, 2007
after giving effect to this offering and the concurrent
offering, but not the exercise of the respective over-allotment
options. This table should be read in conjunction with our
unaudited interim consolidated financial statements for the
three months ended March 31, 2007, including the notes
thereto and managements discussion and analysis of results
of operations and financial conditions for such period, each of
which is incorporated by reference in this prospectus. This
table assumes no conversion of the notes into common shares.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As at
March 31, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As adjusted(1)
|
|
|
|
|
|
|
As adjusted(1)
|
|
|
(this offering
and
|
|
|
|
Actual
|
|
|
(this
offering)
|
|
|
concurrent
offering)
|
|
|
|
|
Cash and cash
equivalents
|
|
$
|
20,035,490
|
|
|
$
|
122,661,090
|
|
|
$
|
194,661,090
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior subordinated convertible
notes offered concurrently(3)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
49,191,479
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders
Equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
Common shares
(authorizedunlimited; Class A
outstanding40,705,144; as adjusted to give effect to this
offering56,705,144; as adjusted to give effect to this
offering and the concurrent offering56,705,144) and Equity
units1,085,099
|
|
$
|
167,717,010
|
|
|
$
|
277,957,010
|
|
|
$
|
277,957,010
|
|
Less common shares and equity
units held by affiliates
|
|
$
|
(636,267
|
)
|
|
$
|
(636,267
|
)
|
|
$
|
(636,267
|
)
|
Stock options(2)
|
|
$
|
3,882,052
|
|
|
$
|
3,882,052
|
|
|
$
|
3,882,052
|
|
Accumulated deficit
|
|
$
|
(71,834,730
|
)
|
|
$
|
(71,834,730
|
)
|
|
$
|
(71,834,730
|
)
|
Accumulated other comprehensive
income
|
|
$
|
1,667,095
|
|
|
$
|
1,667,095
|
|
|
$
|
1,667,095
|
|
KSOP debt
|
|
$
|
(871
|
)
|
|
$
|
(871
|
)
|
|
$
|
(871
|
)
|
Senior subordinated convertible
notes offered concurrently(3)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
25,808,521
|
|
Total Shareholders
Equity
|
|
$
|
100,794,289
|
|
|
$
|
211,034,289
|
|
|
$
|
236,842,810
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total capitalization
|
|
$
|
100,794,289
|
|
|
$
|
211,034,289
|
|
|
$
|
286,034,289
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
After deducting the
underwriters fee and expenses of this offering and the
concurrent offering but not giving effect to the exercise of the
respective over-allotment options.
|
|
|
|
(2)
|
|
As of March 31, 2007, there
were 2,578,639 stock options outstanding, which were
exercisable for 2,578,639 common shares. In addition,
subject to shareholder approval at the annual general meeting in
June 2007, we have extended until July 31, 2007 the expiry
date of 2,680,500 common share purchase warrants, which were
originally scheduled to expire on November 6, 2006 and that
would be exercisable for 2,680,500 common shares. Our Equity
Incentive Plan allows us to issue options to purchase an amount
of common shares equal to 10% of the common shares outstanding
at the time those options are issued.
|
|
|
|
(3)
|
|
There are differences between
Canadian GAAP and U.S. GAAP in the accounting treatment for
convertible debt. Under Canadian GAAP, the senior notes would be
allocated on our consolidated financial statements into a debt
component of $49,191,479 and an equity component of $25,808,521.
The debt issuance costs totaling $3,000,000 would also be
allocated between debt and equity components. Issuance costs of
$1,032,341 relating to the equity component would be charged to
the equity portion of the senior notes while $1,967,659 relating
to the liability component would be netted against the carrying
value of the debt.
|
As of April 30, 2007, we had approximately $21 million
in cash and investments.
19
Concurrent
offering
Concurrently with this offering, we are filing a prospectus in
connection with a public offering of $75,000,000 aggregate
principal amount of senior subordinated convertible notes. The
notes will bear interest at a rate of % per
year. Interest will be payable semi-annually in arrears on
June 15 and December 15 of each year, beginning
December 15, 2007. The notes will mature on June 5,
2022.
The notes will be unsecured obligations and will rank
(1) subordinate in right of payment to future
unsubordinated indebtedness for the construction and development
of Brisas, and will be effectively subordinate to the extent of
the collateral securing such indebtedness, (2) subordinate
to senior secured bank indebtedness in right of payment, and
will be effectively subordinate to the extent of the collateral
securing such indebtedness, (3) subordinate in right of
payment to any guarantee of the indebtedness described in
(1) or (2) by us or any of our subsidiaries for the period
that the guarantee is in effect, (4) equal in right of
payment to any of our other existing and future unsecured and
unsubordinated indebtedness, and (5) senior in right of
payment to all of our future subordinated debt. However, the
notes will be effectively subordinated to all future secured
debt to the extent of the security on such other indebtedness
and to all existing and future obligations of our subsidiaries.
Holders of notes will be able to convert their notes into common
shares based on a conversion rate
of common
shares per $1,000 principal amount of notes, equivalent to a
conversion price of approximately
$ per share, subject to
adjustment, at their option at any time prior to maturity.
Subject to the satisfaction of certain conditions, we may, in
lieu of delivering common shares upon conversion of all or a
portion of the notes, elect to pay cash or a combination of cash
and common shares. In addition, following certain corporate
transactions described in the prospectus relating to the
concurrent offering, we will increase the conversion rate for
holders who elect to convert notes in connection with such
corporate transactions in certain circumstances.
We may redeem for cash all or a portion of the notes at any time
on or after June 6, 2010, until June 15, 2012, at a
purchase price equal to 100% of the principal amount being
redeemed, plus accrued and unpaid interest, if any, if the
closing price of our common shares reaches a specified
threshold. Beginning on June 16, 2012, we may redeem for
cash all or a portion of the notes at a price equal to 100% of
the principal amount being redeemed, plus accrued and unpaid
interest, if any. We may not otherwise redeem any of the notes
at our option prior to maturity, except upon the occurrence of
certain changes to the laws governing Canadian withholding taxes.
Holders may require us to purchase all or a portion of their
notes on June 15, 2012 at a price equal to 100% of the
principal amount of the notes to be purchased plus accrued and
unpaid interest, if any. In addition, if we experience specified
types of fundamental changes, holders may require us to
repurchase all or a portion of their notes at a price equal to
100% of the principal amount of the notes to be purchased, plus
accrued and unpaid interest, if any. We may choose to pay the
purchase price in connection with a purchase of the notes at the
option of the holder or upon a fundamental change in cash,
common shares or any combination of cash and common shares.
The notes will not be listed on any securities exchange. The
notes will be ready for delivery in book-entry form through the
facilities of The Depository Trust Company on or about
May ,
20
2007. The TSX has conditionally approved the listing of the
common shares issuable upon conversion of all or a portion of
the notes offered in the concurrent offering. Listing is subject
to our fulfilling all of the requirements of the TSX on or
before August 3, 2007, including distribution of the common
shares to a minimum number of public securityholders.
Application has also been made to have the common shares
issuable upon conversion of all or a portion of the notes
offered in the concurrent offering listed on AMEX.
There is no assurance that the concurrent offering will be
completed. If completed, the proceeds of the concurrent offering
will be used by us to fund construction activities, equipment
purchases and ongoing development of Brisas. See Use of
proceeds. Neither this offering, nor the concurrent
offering, is contingent on the completion of the other.
Description of
share capital
We are authorized to issue an unlimited number of Class A
common shares of which 40,784,519 Class A common
shares were issued and outstanding at May 11, 2007.
Shareholders are entitled to receive notice of and attend all
meetings of shareholders with each Class A common share
held entitling the holder to one vote on any resolution to be
passed at such shareholder meetings. Shareholders are entitled
to dividends if, as and when declared by our board of directors.
Upon our liquidation, dissolution or winding up, shareholders
are entitled to receive our remaining assets available for
distribution to shareholders. The Class A common shares
include associated Class A common share purchase rights
under our Shareholder Rights Plan Agreement, as amended and
restated. Those rights are described under Shareholder
Rights Plan on page 25 of the annual information form
incorporated by reference into this prospectus.
In February 1999, the shareholders of Gold Reserve Corporation
approved a plan of arrangement as a result of which Gold Reserve
Corporation became a subsidiary of Gold Reserve Inc. Generally,
each shareholder of Gold Reserve Corporation received one
Class A common share of Gold Reserve Inc. for each common
share owned in Gold Reserve Corporation. Certain
U.S. holders elected, for tax reasons, to receive equity
units instead of Class A common shares. Each equity unit
consists of one Class B common share of Gold Reserve Inc.
and one Gold Reserve Corporation Class B common share,
which consideration was substantially equivalent to a
Class A common share and is generally immediately
convertible into a Class A common share. Holders of
Class A common shares and Class B common shares will
generally be entitled to one vote per share and to vote together
as a single class. Equity units, of which 1,085,099 were issued
and outstanding at May 11, 2007, are not listed for trading
on any stock exchange, but subject to compliance with applicable
federal, provincial and state securities laws, may be
transferred.
Income tax
considerations
Certain Canadian
income tax considerations
In the opinion of Fasken Martineau DuMoulin LLP, Canadian
counsel to the Company, and Heenan Blaikie LLP, Canadian counsel
to the underwriters, the following is, as of the date hereof, a
general summary of the principal Canadian federal income tax
considerations applicable to a prospective purchaser of common
shares to be issued pursuant to this Offering.
This summary is based upon the current provisions of the Income
Tax Act (Canada) and the regulations thereunder (Tax
Act), specific proposals to amend the Tax Act (the
Tax
21
Proposals) which have been announced by or on behalf the
Minister of Finance (Canada) prior to the date hereof, and
counsels understanding of the current published
administrative policies and assessing practices of the Canada
Revenue Agency (the CRA). This summary assumes that
the Tax Proposals will be enacted in the form proposed and does
not take into account or anticipate any other changes in law,
whether by way of judicial, legislative or governmental decision
or action, nor does it take into account provincial, territorial
or foreign income tax legislation or considerations, which may
differ from the Canadian federal income tax considerations
discussed in this prospectus. No assurances can be given that
the Tax Proposals will be enacted as proposed or at all, or that
legislative, judicial or administrative changes will not modify
or change the statements expressed in this prospectus.
This summary is not exhaustive of all possible Canadian
federal income tax considerations applicable to an investment in
common shares, and does not describe the income tax
considerations relating to the deductibility of interest on
money borrowed by a Holder. The following description of income
tax matters is of a general nature only and is not intended to
be, nor should it be construed to be, legal or income tax advice
to any particular Holder. Holders are urged to consult their own
income tax advisors with respect to the tax consequences
applicable to them based on their own particular
circumstances.
Purchasers
resident in Canada
This portion of the summary is applicable only to a purchaser
who, at all relevant times, is resident in Canada, deals at
arms length and is not affiliated with the Company, and
who will acquire and hold common shares to be issued pursuant to
this offering as capital property (a Holder), all
within the meaning of the Tax Act. Any common shares will
generally be considered to be capital property to a Holder
unless the Holder holds such securities in the course of
carrying on a business or has acquired them in a transaction or
transactions considered to be an adventure in the nature of
trade. Certain Holders whose common shares might not otherwise
qualify as capital property may be entitled to make the
irrevocable election provided by subsection 39(4) of the
Tax Act to have the common shares and every other Canadian
security (as defined by the Tax Act) owned by such Holder
in the taxation year of the election and in all subsequent
taxation years deemed to be capital property.
This summary does not apply to a Holder that is a
financial institution for purposes of the
mark-to-market
provisions of the Tax Act or a specified financial
institution for purposes of the Tax Act.
Disposition of
common shares
A Holder who disposes of or is deemed to have disposed of a
common share will realize a capital gain (or incur a capital
loss) equal to the amount by which the proceeds of disposition
in respect of the common share exceed (or are exceeded by) the
aggregate of the adjusted cost base of such common share and any
reasonable expenses associated with the disposition. The
adjusted cost base of common shares to a Holder will be the
average cost of all common shares held by the Holder.
One-half of any capital gain (a taxable capital
gain) must be included in income and one-half of any
capital loss may be used to offset taxable capital gains
incurred in the taxation year, in any of the three prior
taxation years or in any subsequent taxation year in the
circumstances and to the extent provided in the Tax Act. A
capital loss realized from the disposition of a common share by
a Holder that is a corporation may in certain circumstances be
reduced by the
22
amount of dividends that have been previously received or deemed
to have been received by the Holder on such shares. Similar
rules may apply where a corporation is, directly or through a
trust or partnership, a member of a partnership or a beneficiary
of a trust that owns common shares. Capital gains realized by an
individual and certain trusts may result in the individual or
trust paying alternative minimum tax under the Tax Act.
A Holder that is, throughout the relevant taxation year, a
Canadian-controlled private corporation (as defined
in the Tax Act) may be liable to pay an additional refundable
tax of
62/3%
on its aggregate investment income for the year,
which is defined to include an amount in respect of taxable
capital gains.
Taxation of
dividends received by holders of common shares
Dividends (including deemed dividends) received on common shares
by a Holder who is an individual (and certain trusts) will be
included in income and be subject to the
gross-up and
dividend tax credit rules normally applicable to taxable
dividends received by an individual from taxable Canadian
corporations. An enhanced dividend tax credit will be available
in respect of eligible dividends (as defined in the
Tax Act) paid by the Company. Taxable dividends received by
Holders that are individuals and certain trusts may give rise to
alternative minimum tax under the Tax Act.
Dividends (including deemed dividends) received on common shares
by a Holder that is a corporation will be included in income and
normally be deductible in computing such corporations
taxable income. However, the Tax Act will generally impose a
331/3%
refundable tax on such dividends received by a corporation that
is a private corporation or a subject corporation for purposes
of Part IV of the Tax Act to the extent that such dividends
are deductible in computing the corporations taxable
income.
Purchasers
resident in the United States
This portion of the summary is applicable to a purchaser who is
a U.S. Holder (as defined below) who, at all relevant times
for purposes of the Tax Act, is not resident or deemed to be
resident in Canada, deals at arms length with the Company,
holds the common shares as capital property and does not use or
hold, and is not deemed to use or hold the common shares in the
course of carrying on, or otherwise in connection with, a
business in Canada and who, for purposes of the
Canada-United
States Income Tax Convention (1980) (the Treaty), is
a resident of the United States. United States limited liability
companies (LLCs) generally are not considered
residents of the United States for the purposes of the Treaty.
However, the Tax Proposals include a proposal to amend the
Treaty whereby LLCs would be considered to be residents of the
United States upon such amendment coming into force. There is no
assurance that the Treaty will be amended in such manner.
Generally, common shares will be considered to be capital
property to a holder thereof provided that the holder does not
use the common shares in the course of carrying on a business
and such holder has not acquired them in one or more
transactions considered to be an adventure or concern in the
nature of trade. This summary does not deal with special
situations, such as particular circumstances of traders or
dealers in securities, tax exempt entities, insurers, and
financial institutions. For purposes of the Tax Act, all amounts
relevant in computing a holders liability under the Tax
Act must be computed in Canadian dollars. Amounts denominated in
U.S. dollars including adjusted cost base and proceeds of
disposition must be converted into Canadian dollars based on the
prevailing exchange rate at the relevant time.
23
Dividends
Dividends on common shares paid or credited to a
U.S. Holder by the Company are subject to Canadian
withholding tax. Under the Treaty, the rate of withholding tax
on dividends paid or credited to a U.S. Holder is generally
limited to 15% of the gross amount of the dividend (or 5% in the
case of a U.S. Holder that is a corporation beneficially
owning at least 10% of the Companys voting shares). Under
the Treaty, dividends paid by the Company to certain religious,
scientific, charitable, certain other tax-exempt organizations
and certain pension organizations that are resident in, and
exempt from tax in, the United States are exempt from Canadian
withholding tax. Provided that certain administrative procedures
are observed regarding registration of such organizations, the
Company will not be required to withhold such tax from dividends
paid to such organizations. If qualifying organizations fail to
follow the required administrative procedures, the Company will
be required to withhold tax and the organizations will have to
file with the CRA a claim for refund to recover amounts withheld.
Dispositions
A U.S. Holder will generally not be subject to tax under
the Tax Act in respect of a capital gain realized on the
disposition of a common share, unless the common share
constitutes taxable Canadian property as defined in
the Tax Act at the time of disposition. A common share will
generally not be taxable Canadian property to a U.S. Holder
at the time of disposition provided the common shares are listed
on a prescribed stock exchange (which includes the TSX and AMEX)
at that time and, during the 60 month period ending at the
time of disposition of the common share, the U.S. Holder,
persons with whom the U.S. Holder did not deal at
arms length, or the U.S. Holder together with such
persons, did not own 25% or more of the Companys issued
shares of any class or series of capital stock. By reason of the
Treaty, even if a common share constitutes taxable Canadian
property to a U.S. Holder, no tax will generally be payable
under the Tax Act on a capital gain realized by the
U.S. Holder on the disposition of such shares provided the
value of such shares at the time of disposition is not derived
principally from real property situated in Canada. The Company
has advised counsel that, at the date of this short form
prospectus, the value of the common shares is not derived
principally from real property situated in Canada within the
meaning of the Treaty.
Certain United
States federal income tax considerations
The following is a summary of certain material U.S. federal
income tax consequences arising from and relating to the
acquisition, ownership and disposition of common shares acquired
pursuant to this prospectus.
This summary is for general information purposes only and does
not purport to be a complete analysis or listing of all
potential U.S. federal income tax consequences that may
apply to a holder as a result of the acquisition, ownership and
disposition of common shares. In addition, this summary does not
take into account the individual facts and circumstances of any
particular holder that may affect the U.S. federal income
tax consequences of the acquisition, ownership and disposition
of common shares. Accordingly, this summary is not intended to
be, and should not be construed as, legal or U.S. federal
income tax advice with respect to any holder. Each holder should
consult its own financial advisor, legal counsel, or accountant
regarding the U.S. federal income tax consequences of the
acquisition, ownership and disposition of common shares.
24
Authorities
This summary is based on the Internal Revenue Code of 1986, as
amended (the Code), Treasury Regulations promulgated
thereunder, published rulings of the Internal Revenue Service
(the IRS), published administrative positions of the
IRS, the Convention Between Canada and the United States of
America with Respect to Taxes on Income and on Capital, signed
September 26, 1980, as amended, and U.S. court
decisions that are applicable and, in each case, as in effect
and available, as of the date of this prospectus. All of the
authorities on which this summary is based are subject to
differing interpretations and could be changed in a material and
adverse manner at any time, and any such change could be applied
on a retroactive basis. In such event, the U.S. federal
income tax consequences applicable to a holder of the common
shares could differ from those described in this summary. This
summary does not discuss the potential effects, whether adverse
or beneficial, of any proposed legislation that, if enacted,
could be applied on a retroactive basis.
U.S. Holders
For purposes of this summary, a U.S. Holder is
a beneficial owner of common shares that, for U.S. federal
income tax purposes, is (a) an individual who is a citizen
or resident of the U.S., (b) a corporation, or any other
entity classified as a corporation for U.S. federal income
tax purposes, that is created or organized in or under the laws
of the U.S. or any political subdivision thereof, including
the District of Columbia, (c) an estate if the income of
such estate is subject to U.S. federal income tax
regardless of the source of such income, or (d) a trust if
(i) such trust has validly elected, under applicable
Treasury Regulations, to be treated as a U.S. person for
U.S. federal income tax purposes or (ii) a
U.S. court is able to exercise primary supervision over the
administration of such trust and one or more U.S. persons,
as defined in Section 7701(a)(30) of the Code, have the
authority to control all substantial decisions of such trust.
Non-U.S. Holders
For purposes of this summary, a
non-U.S. Holder
is a beneficial owner of common shares other than a
U.S. Holder. A
non-U.S. Holder
should consult its own financial advisor, legal counsel, or
accountant regarding the U.S. federal income tax
consequences (including the potential application of and
operation of any income tax treaties) of the acquisition,
ownership and disposition of common shares.
Holders subject
to special U.S. federal income tax rules not
addressed
This summary does not address the U.S. federal income tax
consequences of the acquisition, ownership and disposition of
common shares to holders that are subject to special provisions
under the Code, including the following holders:
(a) holders that are tax-exempt organizations, qualified
retirement plans, individual retirement accounts, or other
tax-deferred accounts; (b) holders that are financial
institutions, insurance companies, real estate investment
trusts, or regulated investment companies; (c) holders that
are dealers in securities, commodities or currencies, or holders
that are traders in securities or commodities that elect to
apply a
mark-to-market
accounting method; (d) holders that have a functional
currency other than the U.S. dollar; (e) holders
that are subject to the alternative minimum tax under the Code;
(f) holders that own common shares as part of a straddle,
hedging transaction, conversion transaction, constructive sale,
or other arrangement involving more than one position;
(g) holders that acquired common shares in connection with
the exercise of employee stock
25
options or otherwise as compensation for services;
(h) holders that hold common shares other than as a capital
asset within the meaning of Section 1221 of the Code; or
(i) holders that own (directly, indirectly, or
constructively) 10% or more, by voting power or value, of the
outstanding shares of the Company. Holders that are subject to
special provisions under the Code, including holders described
immediately above, should consult their own financial advisor,
legal counsel or accountant regarding the U.S. federal
income tax consequences of the acquisition, ownership and
disposition of common shares.
If an entity that is classified as a partnership (or
pass-through entity) for U.S. federal income
tax purposes holds common shares, the U.S. federal income
tax consequences to such partnership (or
pass-through entity) and the partners of such
partnership (or owners of such pass-through entity)
generally will depend on the activities of the partnership (or
pass-through entity) and the status of such partners
(or owners). Partners of entities that are classified as
partnerships (or owners of pass-through entities)
for U.S. federal income tax purposes should consult their
own financial advisor, legal counsel or accountant regarding the
U.S. federal income tax consequences of the acquisition,
ownership and disposition of common shares.
Tax consequences
other than U.S. federal income tax consequences not
addressed
This summary does not address the consequences arising under
U.S. federal estate, gift or excise tax laws or the tax
laws of any applicable foreign, state, local or other
jurisdiction to holders of the acquisition, ownership and
disposition of common shares. Each holder should consult its own
financial advisor, legal counsel, or accountant regarding the
consequences of any of these laws on the acquisition, ownership
and disposition of common shares.
U.S. federal
income tax consequences to U.S. Holders of the acquisition,
ownership and disposition of common shares
Passive
foreign investment company
The Company has determined that it was a passive foreign
investment company (a PFIC) for the taxable
year ended December 31, 2006 and the Company expects that
it will be a PFIC for the taxable year ending December 31,
2007. Accordingly, special U.S. federal income tax rules
apply to the acquisition, ownership and disposition of common
shares.
Sections 1291 through 1298 of the Code contain special
rules applicable with respect to foreign corporations that are
PFICs. A company will be considered a PFIC if 75% or more of its
gross income (including a pro rata share of the gross income of
any company (United States or foreign) in which the company is
considered to own 25% or more of the shares by value) in a
taxable year is passive income (the Income Test).
Alternatively, a foreign company will be considered a PFIC if at
least 50% of the assets (averaged over the four quarter ends for
the year) of the company (including a pro rata share of the
assets of any company of which the company is considered to own
25% or more of the shares by value) in a taxable year are held
for the production of, or produce, passive income (the
Asset Test).
For the taxable year ended December 31, 2006, the Company
determined that it was a PFIC under the Income Test. In
addition, the Company expects that it will be a PFIC under the
Income Test for the taxable year ending December 31, 2007,
and, as a result, will be treated as a PFIC for such taxable
year. Further, the Company expects it will continue to be a PFIC
for each subsequent taxable year prior to the year Brisas begins
production. The Company does not, however, believe that any of
its subsidiaries were PFICs as to any shareholder of the Company
26
for the taxable year ended December 31, 2006, and does not
expect that any such subsidiaries will be PFICs as to any
shareholder of the Company for any subsequent taxable year
(including the taxable year ending December 31, 2007). The
determination of whether the Company and any of its subsidiaries
will be a PFIC for a taxable year depends on (i) the
application of complex U.S. federal income tax rules, which
are subject to differing interpretations, and (ii) the
assets and income of the Company and its subsidiaries over the
course of each such taxable year. As a result, whether the
Company and any of its subsidiaries will be a PFIC for any
taxable year (including the taxable year in which Brisas begins
production or any subsequent year) cannot be predicted with
certainty as of the date of this prospectus. Accordingly, there
can be no assurance that the Company and any of its subsidiaries
will not be a PFIC for any taxable year.
For taxable years in which the Company is a PFIC, each
U.S. Holder, in the absence of an election by such
U.S. Holder to treat the Company as a qualified
electing fund (a QEF election), or an election
by such holder to
mark-to-market
his common shares (an MTM election), as discussed
below, will, upon certain distributions by the Company or upon
disposition of the common shares at a gain, be liable to pay
U.S. federal income tax at the highest tax rate on ordinary
income in effect for each year to which the income is allocated
plus interest on the tax, as if the distribution or gain had
been recognized ratably over each day in the
U.S. Holders holding period for the common shares
while the Company was a PFIC. Additionally, the common shares of
a decedent U.S. Holder who failed to make a QEF election
will generally be denied the normally available
step-up of
the tax basis for such common shares to fair market value at the
date of death and, instead, would have a tax basis equal to the
decedents tax basis, if lower, in the common shares.
A U.S. Holder who owns the common shares during a period
when the Company is a PFIC will be subject to the foregoing PFIC
rules, even if the Company ceases to be a PFIC, unless such
U.S. Holder makes a QEF election in the first year in which
the U.S. Holder owns (or is considered to own) stock of the
Company and in which the Company is considered a PFIC. A
U.S. Holder who makes such a timely QEF election will be
entitled to treat any future gain on the sale of the common
shares as capital gain and will not be denied the tax basis step
up at death described above. Additionally, a U.S. Holder
who makes a QEF election will, for each taxable year the Company
is a PFIC, include in income a pro rata share of the ordinary
earnings of the Company as ordinary income and a pro rata share
of any net capital gain of the Company as long-term capital
gain, subject to a separate election to defer payment of taxes
(such deferral is subject to an interest charge). For the
U.S. Holder to make the QEF election, the Company must
agree to supply annually to the U.S. Holder the PFIC
Annual Information Statement and permit the
U.S. Holder access to certain information in the event of
an audit by the U.S. tax authorities. The Company will
prepare and make the statement available to U.S. Holders,
and will permit access to the information.
A U.S. Holder who makes a QEF election for the first
taxable year in which the U.S. Holder owns (or is
considered to own) stock of the Company and in which the Company
is a PFIC (and complies with certain U.S. federal income
tax reporting requirements) should not have any material adverse
U.S. federal income tax consequences if the Company has no
ordinary earnings or net capital gains during such taxable year.
The Company currently expects that it will not have any ordinary
earnings or net capital gains in future years in which it may be
a PFIC. However, no assurance can be given as to this
expectation. Each U.S. Holder is urged to consult its own
financial advisor, legal counsel, or accountant concerning the
application of the U.S. federal income tax rules governing
PFICs in its particular circumstances.
27
Each U.S. Holder choosing to make a QEF election would be
required annually to file an IRS Form 8621 (Return by a
Shareholder of a Passive Foreign Investment Company or Qualified
Electing Fund) with such U.S. Holders timely filed
U.S. federal income tax return (or directly with the IRS if
the U.S. Holder is not required to file an income tax
return). Such U.S. Holder must include on IRS
Form 8621 its income as reflected in the PFIC Annual
Information Statement it receives from the Company. If the
Company determines that it was a PFIC during the taxable year,
within two months after the end of each such taxable year the
Company will make available the PFIC Annual Information
Statement.
As an alternative to the QEF election, a U.S. Holder may
make an MTM election with respect to the common shares. The MTM
election requires that the PFIC stock in question be
publicly traded stock as defined under the rules
governing the MTM election. The common shares are publicly
traded stock as required. If a U.S. Holder makes the MTM
election, it must recognize as ordinary income or loss each year
an amount equal to the difference as of the close of the taxable
year (or actual disposition of the common shares) between the
fair market value of the PFIC stock and the adjusted tax basis
in the PFIC stock. Losses would be allowed only to the extent of
net
mark-to-market
gain previously included in income by the U.S. Holder under
the election for prior taxable years. If a
mark-to-market
election is in effect on the date of a U.S. Holders
death, the otherwise available
step-up in
tax basis to fair market value will not be available. Instead,
the tax basis of the common shares in the hands of a person who
acquires such common shares from the decedent will be the lesser
of the decedents tax basis or the fair market value of the
common shares. If the U.S. Holder makes the MTM election,
distributions from the Company with respect to the common shares
will be treated as if the Company is not a PFIC, except that the
lower tax rate on dividends for U.S. Holder that are
individuals, discussed below, would not be applicable.
In addition, special rules would apply to U.S. Holders of
the common shares for any taxable year in which the Company is a
PFIC and has one or more subsidiaries that is also a PFIC as to
such U.S. Holder (a Subsidiary PFIC). In such
case, U.S. Holders of the common shares generally would be
deemed to own their proportionate interest in any Subsidiary
PFIC and be subject to the PFIC rules with respect to such
Subsidiary PFIC regardless of the percentage ownership of such
U.S. Holders in the Company. If a subsidiary of the Company
is a PFIC and a U.S. Holder does not make a QEF election as
to such subsidiary, as described above, the U.S. Holder
could incur liability for the deferred tax and interest charge
described above if the PFIC Subsidiary makes a distribution, or
an interest in the PFIC Subsidiary is disposed of in whole or in
part, or the U.S. Holder disposes of all or part of its
common shares. A QEF election must be made separately for each
PFIC and thus a QEF election made with respect to the Company
will not apply to any Subsidiary PFIC. If a subsidiary of the
Company is a PFIC, a QEF election for such subsidiary could
accelerate the recognition of taxable income and may result in
the recognition of ordinary income. Additionally, a
U.S. Holder of common shares that has made a MTM election
for his common shares could be subject to the PFIC rules with
respect to the income of a Subsidiary PFIC even though the value
of the Subsidiary PFIC has already been subject to tax as a
result of the MTM election. A MTM election would not be
permitted for a PFIC Subsidiary.
Due to the complexity of the PFIC rules, a U.S. Holder
should consult its own financial advisor, legal counsel, or
accountant regarding the status of the Company and its
subsidiaries as PFICs and the eligibility, manner and
advisability of making a QEF election or a MTM election and how
the PFIC rules may affect the U.S. federal income tax
consequences of a U.S. Holders acquisition, ownership
and disposition of common shares.
28
Acquisition,
ownership and disposition of common shares if the company is not
a PFIC
A U.S. Holder that does not hold stock of the Company
during any taxable year in which the Company is classified as a
PFIC will not be subject to the PFIC rules described above under
the heading Passive foreign investment
company. Additionally, a U.S. Holder that timely
makes a valid QEF election will not be subject to such PFIC
rules during any taxable year in which the Company is not
classified as a PFIC. Instead, such U.S. Holder will be
subject to the following rules.
Distributions
For U.S. federal income tax purposes, the amount of a
distribution made on the common shares generally will equal the
amount of cash and the fair market value of any property
distributed and also will include the amount of any Canadian
taxes withheld as described above under Certain Canadian
income tax considerationsPurchasers resident in the United
States. An amount of the distribution will be treated as a
dividend, taxable to a U.S. Holder as ordinary dividend
income, to the extent of the Companys current or
accumulated earnings and profits allocable to such
U.S. Holder. To the extent that an amount received by a
U.S. Holder exceeds the allocable share of the
Companys current and accumulated earnings and profits,
such excess will be treated as a return of capital to the extent
of the U.S. Holders adjusted tax basis in its common
shares and then, to the extent in excess of such
U.S. Holders adjusted tax basis, as gain from the
sale or exchange of such common shares generally taxable as
capital gain. (See discussion below under
Dispositions.) The amount treated as a dividend will
not be eligible for the dividends received deduction generally
allowed to U.S. corporate shareholders on dividends
received from U.S. corporations.
Distributions of additional common shares to U.S. Holders
with respect to their common shares that are made as part of a
pro rata distribution to all shareholders of the Company
generally will not be subject to U.S. federal income tax. In
general, the tax basis of the common shares held prior to the
distribution (the old common shares) will be
allocated between the additional common shares and the old
common shares in proportion to their fair market values on the
date of distribution.
In the case of non-corporate U.S. Holders, the
U.S. federal income tax rate applicable to dividends
received in taxable years beginning prior to January 1,
2011 may be lower than the rate applicable to other categories
of ordinary income if certain conditions are met. The amount of
any distribution paid in foreign currency will be included in a
U.S. Holders gross income in an amount equal to the
U.S. dollar value of the foreign currency calculated by
reference to the spot rate in effect on the date of actual or
constructive receipt by the U.S. Holder (in accordance with
the U.S. Holders regular method of tax accounting),
regardless of whether the foreign currency is converted into
U.S. dollars on that date. If the foreign currency is
converted into U.S. dollars on the date of actual or
constructive receipt, a U.S. Holder generally should not be
required to recognize foreign currency gain or loss in respect
of the distribution. If the foreign currency received in the
distribution is not converted into U.S. dollars on the date
of receipt, a U.S. Holder will have a tax basis in the
foreign currency equal to its U.S. dollar value on the date
of receipt. Any gain or loss recognized upon a subsequent
conversion or other disposition of the foreign currency will be
treated as U.S. source ordinary income or loss.
Subject to certain limitations, a U.S. Holder may elect to
claim a credit against its U.S. federal income tax
liability for any Canadian tax paid with respect to, or withheld
from, any dividends
29
paid on the common shares. A U.S. Holder who does not make
such an election instead may deduct the Canadian tax paid or
withheld, but only for a year in which such U.S. Holder
elects to do so with respect to all creditable foreign taxes
paid by such U.S. Holder. The availability of the foreign
tax credit is subject to complex limitations.
For U.S. foreign tax credit purposes, dividends paid on the
common shares generally will be treated as passive
income (or general income for certain
U.S. Holders).
The rules relating to the U.S. foreign tax credit are
complex, and each U.S. Holder should consult its own
financial advisor, legal counsel or accountant to determine
whether and to what extent it would be entitled to a foreign tax
credit.
Dispositions
A U.S. Holders sale, exchange or other taxable
disposition of the common shares generally will result in the
recognition by the U.S. Holder of U.S. source taxable
capital gain or loss in an amount equal to the difference
between (a) the U.S. dollar value of the amount of
cash and fair market value of any property received upon the
sale, exchange or other taxable disposition and (b) such
U.S. Holders adjusted tax basis in the common shares.
Such capital gain or loss will be long-term if the
U.S. Holders holding period in the common shares is
more than one year at the time of the sale, exchange or other
taxable disposition. Long-term capital gain recognized by
certain non-corporate U.S. Holders generally will be
subject to U.S. federal income tax rates lower than the
rates applicable to ordinary income. The deductibility of
capital losses is subject to limitations. Each U.S. Holder
should consult its own financial advisor, legal counsel or
accountant regarding the treatment of capital gains and losses.
U.S. federal
income tax consequences to
non-U.S. Holders
of the acquisition, ownership and disposition of common
shares
Distributions
A
non-U.S. Holder
generally will not be subject to U.S. federal income tax or
withholding tax on distributions with respect to the common
shares that are treated as a dividend for U.S. federal
income tax purposes unless such dividends are effectively
connected with the conduct of a trade or business within the
U.S. by the non-U.S. Holder (and are attributable to a
permanent establishment maintained in the U.S. by such
non-U.S. Holder
if an applicable income tax treaty so requires as a condition
for such
non-U.S. Holder
to be subject to U.S. federal taxation on a net income
basis in respect of income from the common shares), in which
case the
non-U.S. Holder
generally will be subject to U.S. federal income tax in
respect of such dividends in the same manner as a
U.S. Holder. Any such effectively connected dividends
received by a corporate
non-U.S. Holder
also may, under certain circumstances, be subject to an
additional branch profits tax at a 30% rate or such
lower rate as may be specified by an applicable income tax
treaty. A
non-U.S. Holder
generally will not be subject to U.S. federal income tax or
withholding tax on distributions that are treated as capital
gain for U.S. federal income tax purposes unless such
non-U.S. Holder
would be subject to U.S. federal income tax on gain
realized on the sale or other disposition of the common shares.
See discussion below under Dispositions.
30
Dispositions
A
non-U.S. Holder
will not be subject to U.S. federal income tax or
withholding tax on gain realized on the sale or other
disposition of the common shares unless (i) the gain is
effectively connected with the conduct of a trade or business by
the
non-U.S. Holder
in the U.S. (and is attributable to a permanent
establishment maintained in the U.S. by such
non-U.S. Holder
if an applicable income tax treaty so requires as a condition
for such
non-U.S. Holder
to be subject to U.S. federal income taxation on a net
income basis in respect of income from the common shares), or
(ii) such
non-U.S. Holder
is an individual who is present in the U.S. for
183 days or more in the taxable year of the sale, and
certain other conditions are met. Effectively connected gains
realized by a corporate
non-U.S. Holder
may also, under certain circumstances, be subject to an
additional branch profits tax at a 30% rate or such
lower rate as may be specified by an applicable income tax
treaty.
Information
reporting; backup withholding tax
In general, dividend payments or other taxable distributions on
the Companys common shares or proceeds from the
disposition of common shares paid by a U.S. paying agent or
other U.S. intermediary to a non-corporate holder may be
subject to information reporting to the IRS and possible
U.S. backup withholding (currently imposed at a rate of
28%). Backup withholding generally would not apply to a
U.S. Holder that timely furnishes a correct taxpayer
identification number and makes any other required
certifications or if the U.S. Holder is otherwise exempt
from backup withholding. U.S. Holders that are required to
establish their exempt status generally must provide such
certification on IRS
Form W-9
(Request for Taxpayer Identification Number and Certification).
Certain
non-U.S. Holders
receiving payments in the U.S., or through certain
U.S. financial intermediaries should establish their
exemption from information reporting or backup withholding by
providing certification of
non-U.S. status
on IRS
Form W-8
BEN, as applicable.
Amounts withheld as backup withholding may be credited against
the holders U.S. federal income tax liability.
Additionally, a holder may obtain a refund of any excess amounts
withheld under the backup withholding regime by timely filing
the appropriate claim for refund with the IRS and furnishing any
required information. Copies of any information returns filed
with the IRS may be made available by the IRS, under the
provisions of a specific treaty or agreement, to the taxing
authorities of the country in which the
non-U.S. Holder
resides or is organized.
Each holder should consult its own financial advisor, legal
counsel, or accountant regarding the information reporting and
backup withholding tax rules.
31
Underwriting
J.P. Morgan Securities Inc. and RBC Dominion Securities
Inc. are the representatives of the underwriters. Subject to the
terms and conditions of the underwriting agreement, the
underwriters named below, through their representatives, have
severally agreed to purchase from us the following respective
numbers of common shares:
|
|
|
|
|
|
|
Name
|
|
Number
of shares
|
|
|
|
|
J.P. Morgan Securities
Inc.
|
|
|
|
|
RBC Dominion Securities Inc.
|
|
|
|
|
Cormark Securities Inc.
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
16,000,000
|
|
|
The underwriting agreement provides that the obligations of the
underwriters are subject to certain conditions precedent,
including the absence of any material adverse change in our
business and the receipt of certain certificates, opinions and
letters from us, our counsel and the independent auditors, and
the receipt of an opinion from the National Association of
Securities Dealers, Inc. that it has no objection to the
proposed underwriting terms between us and the underwriters. The
underwriters are committed to purchase all the common shares
offered by us if they purchase any shares.
The following table shows the per share and total underwriting
fees we will pay to the underwriters. Such amounts are shown
assuming both no exercise and full exercise of the
underwriters over-allotment option to purchase additional
shares.
Underwriting
fees
|
|
|
|
|
|
|
|
|
|
Without
over-allotment
|
|
With
over-allotment
|
|
|
exercise
|
|
exercise
|
|
|
Per share
|
|
$
|
|
|
$
|
|
Total
|
|
$
|
|
|
$
|
|
|
We estimate that the total expenses of this offering and the
concurrent offering, excluding underwriting fees, will be
approximately $1,000,000.
The underwriters propose to offer the common shares directly to
the public at the initial public offering price set forth on the
cover page of this prospectus and to certain dealers at that
price less a concession not in excess of
$ per share. The underwriters
may allow, and such dealers may re-allow, a concession not in
excess of $ per share to
certain other dealers. After the initial public offering of the
shares, the offering price and other selling terms may be
changed by the underwriters.
This offering is being made concurrently in all of the provinces
of Canada other than Québec and in the United States
pursuant to the multi-jurisdictional disclosure system
implemented by the securities regulatory authorities in the
United States and Canada. The common shares will be offered in
the United States and Canada by the underwriters either directly
or through their respective U.S. or Canadian broker-dealer
affiliates or agents, as applicable. Subject to applicable law,
the underwriters may offer the common shares outside of Canada
and the United States.
32
We have granted to the underwriters a
30-day
option to purchase up to 2,400,000 additional common shares, at
the initial public offering price less the underwriting fee set
forth on the cover page of this prospectus. The underwriters may
exercise the over-allotment option solely for the purpose of
covering over-allotments, if any, in connection with this
offering. To the extent the over-allotment option is exercised,
each underwriter must purchase a number of additional common
shares approximately proportionate to that underwriters
initial purchase commitment. Under applicable Canadian
securities laws, this prospectus also qualifies the grant of the
over-allotment option and the distribution of the additional
common shares issuable on exercise of the over-allotment option.
We and our executive officers and directors have agreed that,
for a period of 90 days from the closing date of this offering,
that neither we nor they will, without the prior written consent
of the underwriters, directly or indirectly, offer, sell or
otherwise dispose of, or enter into any agreement to offer, sell
or otherwise dispose of, any of our securities other than grants
of options or rights or issuances of common shares (i) as a
bona fide gift or gifts, provided that the donee or donees
agrees to be bound in writing by the restrictions set forth in
the lock-up agreement; (ii) to any trust for the direct or
indirect benefit of an officer or director or an immediate
family member of such officer or director, provided that the
trustee of the trust agrees to be bound in writing by the
restrictions set forth in the lock-up agreement;
(iii) arising as a result of a director or officer
serving as a trustee of our KSOP, if applicable; (iv) as
collateral for any loan, provided that the lender agrees in
writing to be bound by the restrictions set forth in the lock-up
agreement; (v) to an executor or heir in the event of the
death of an officer or director, provided that any such executor
and heir agree to be bound in writing by the restrictions set
forth in the lock-up agreement; and (vi) by way of a sale
in accordance with or pursuant to a Rule 10b5-1 plan under the
U.S. Exchange Act, which plan is in effect as of the date of the
lock-up agreement. Notwithstanding the foregoing, the
underwriters have agreed that up to a total of 20,000 common
shares may be sold by each officer and director during the term
of the lock-up agreement.
You should be aware that the laws and practices of certain
countries require investors to pay stamp taxes and other charges
in connection with purchases of securities.
In connection with the offering of the common shares, the
underwriters may engage in over-allotment, stabilizing
transactions and syndicate covering transactions in our common
shares. Over-allotment involves sales in excess of the offering
size, which creates a short position for the underwriters.
Stabilizing transactions involve bids to purchase our common
shares in the open market for the purpose of pegging, fixing or
maintaining the price of the common shares. Syndicate covering
transactions involve purchases of common shares in the open
market after the distribution has been completed in order to
cover short positions. Stabilizing transactions and syndicate
covering transactions may cause the price of our common shares
to be higher than it would otherwise be in the absence of those
transactions.
We and the underwriters do not make any representation or
prediction as to the direction or magnitude of any effect that
the transactions described above may have on the price of our
common shares. In addition, we and the underwriters do not make
any representation that the underwriters will engage in these
transactions or that these transactions, once commenced, will
not be discontinued without notice.
In the underwriting agreement, we have agreed that we will
indemnify the underwriters against certain liabilities,
including liabilities under the U.S. Securities Act and
Canadian securities laws,
33
or contribute to payments that the underwriters may be required
to make in respect of those liabilities.
The underwriters and their affiliates have in the past and may
in the future provide various financial advisory, investment
banking and commercial banking services for us and our
affiliates in the ordinary course of business for which they
have received and will receive customary fees and commissions.
Notice to
prospective investors in the European Economic Area
In relation to each member state of the European Economic Area
that has implemented the Prospectus Directive (each, a relevant
member state), with effect from and including the date on which
the Prospectus Directive is implemented in that relevant member
state (the relevant implementation date), an offer of securities
described in this prospectus may not be made to the public in
that relevant member state prior to the publication of a
prospectus in relation to the securities that has been approved
by the competent authority in that relevant member state or,
where appropriate, approved in another relevant member state and
notified to the competent authority in that relevant member
state, all in accordance with the Prospectus Directive, except
that, with effect from and including the relevant implementation
date, an offer of securities may be offered to the public in
that relevant member state at any time:
|
|
|
to any legal entity that is authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
|
|
to any legal entity that has two or more of (a) an average
of at least 250 employees during the last financial year;
(b) a total balance sheet of more than 43,000,000 and
(c) an annual net turnover of more than 50,000,000,
as shown in its last annual or consolidated accounts; or
|
|
in any other circumstances that do not require the publication
of a prospectus pursuant to Article 3 of the Prospectus
Directive.
|
Each purchaser of securities described in this prospectus
located within a relevant member state will be deemed to have
represented, acknowledged and agreed that it is a
qualified investor within the meaning of
Article 2(1)(e) of the Prospectus Directive.
For purposes of this provision, the expression an offer to
the public in any relevant member state means the
communication in any form and by any means of sufficient
information on the terms of the offer and the securities to be
offered so as to enable an investor to decide to purchase or
subscribe the securities, as the expression may be varied in
that member state by any measure implementing the Prospectus
Directive in that member state, and the expression
Prospectus Directive means Directive
2003/71/ EC
and includes any relevant implementing measure in each relevant
member state.
The sellers of the securities offered hereby have not authorized
and do not authorize the making of any offer of the securities
through any financial intermediary on their behalf, other than
offers made by the underwriters with a view to the final
placement of the securities as contemplated in this prospectus.
Accordingly, no purchaser of the securities, other than the
underwriters, is authorized to make any further offer of the
securities on behalf of the sellers or the underwriters.
34
Notice to
prospective investors in the United Kingdom
This prospectus is only being distributed to, and is only
directed at, persons in the United Kingdom that are qualified
investors within the meaning of Article 2(1)(e) of the
Prospectus Directive that are also (i) investment
professionals falling within Article 19(5) of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2005
(the Order) or (ii) high net worth entities,
and other persons to whom it may lawfully be communicated,
falling within Article 49(2)(a) to (d) of the Order
(all such persons together being referred to as relevant
persons). This prospectus and its contents are confidential and
should not be distributed, published or reproduced (in whole or
in part) or disclosed by recipients to any other persons in the
United Kingdom. Any person in the United Kingdom that is not a
relevant person should not act or rely on this document or any
of its contents.
Legal
matters
Certain legal matters relating to this offering and to the
common shares to be distributed pursuant to this prospectus will
be passed upon on behalf of us by Fasken Martineau DuMoulin LLP,
with respect to Canadian legal matters, by Baker &
McKenzie LLP, with respect to U.S. legal matters, and by
Baker & McKenzie SC, with respect to Venezuelan legal
matters, and on behalf of the underwriters by Heenan Blaikie
LLP, with respect to Canadian legal matters, and by Skadden,
Arps, Slate, Meagher & Flom LLP, with respect to
U.S. legal matters.
Names and
interests of experts
As of the date hereof, none of the partners and associates of
Fasken Martineau DuMoulin LLP and Heenan Blaikie LLP or
SNC-Lavalin, Aker Kvaerner Metals Inc., Marston &
Marston, Inc., Pincock, Allen & Holt, Susan Poos,
P.E., Richard Lambert, P.E., and Richard Addison, P.E., each
being companies or persons who have prepared reports relating to
our mineral properties, or any director, officer, employee or
partner thereof, as applicable, received or has received a
direct or indirect interest in our property or of any or our
associates or affiliates. As at the date of this prospectus, all
such persons, directors, officers, employees and partners in the
aggregate, as applicable, of each of the aforementioned
companies and partnerships, beneficially own, directly or
indirectly, less than one percent of our securities.
Auditors,
transfer agent and registrar
Our auditors are PricewaterhouseCoopers LLP, Chartered
Accountants, of 250 Howe Street, Suite 700, Vancouver,
British Columbia V6C 3S7 who advise that they are independent of
us within the Rules of Professional Conduct of the Institute of
Chartered Accountants of British Columbia.
The transfer agent and registrar for our common shares is
Computershare Investor Services Inc. at its offices in Toronto,
Ontario and Denver, Colorado.
35
Documents
incorporated by reference
Information has been incorporated by reference in this
prospectus from documents filed with securities commissions or
similar authorities in Canada and forms an integral part of this
prospectus. Copies of the documents incorporated by reference in
this prospectus may be obtained on request without charge from
Mary Smith, our Secretary, at 926 West Sprague Avenue,
Suite 200, Spokane, Washington 99201, U.S.A. (Telephone:
(509) 623-1500).
These documents are also available electronically at
www.sedar.com or at www.sec.gov. The
following documents filed with the securities commissions or
similar authorities in Canada are specifically incorporated by
reference and form an integral part of this prospectus. You
should review them prior to making an investment decision:
|
|
|
our annual information form dated March 30, 2007 for the
year ended December 31, 2006;
|
|
our audited annual consolidated comparative financial statements
for the year ended December 31, 2006 and the auditors
report thereon, together with managements discussion and
analysis for the year ended December 31, 2006;
|
|
|
|
our unaudited interim consolidated financial statements for the
three month period ended March 31, 2007, together with
managements discussion and analysis for the three month
period ended March 31, 2007;
|
|
|
|
our material change report dated May 9, 2007 announcing
this offering and the concurrent offering;
|
|
|
|
our material change report dated March 29, 2007 announcing
that the MINAMB has accepted the ESIA and issued to us, on
March 27, 2007 the Authorization for the Affectation of
Natural Resources for the Construction of the Infrastructure and
Services Phase of Brisas;
|
|
our management information circular dated April 20, 2007
prepared in connection with our annual and special meeting of
shareholders to be held on June 7, 2007; and
|
|
the summary, being pages 1.1 to 1.13 inclusive, of NI
43-101
Technical Report, Brisas, Venezuela, Feasibility Update dated
October 30, 2006 as prepared by PAH.
|
Any document of the type referred to in the first six items
above (other than confidential material change reports) and any
interim financial statements and related managements
discussion and analysis, in each case filed by us with the
securities commissions or similar authorities in Canada after
the date of this prospectus and prior to the completion or
termination of this offering, shall be deemed to be incorporated
by reference into and form an integral part of this prospectus.
The documents incorporated or deemed to be incorporated by
reference in this prospectus contain meaningful and material
information relating to us, and prospective investors should
review all information contained in this prospectus and the
documents incorporated by reference in this prospectus before
making an investment decision. In addition, to the extent
indicated in any Report on
Form 6-K
furnished to the SEC or in any Report on
Form 40-F
filed with the SEC, any information therein shall be deemed to
be incorporated by reference in this prospectus.
Any statement contained in a document incorporated or deemed to
be incorporated by reference in this prospectus or in any
subsequently filed document which also is or is deemed to be
incorporated by reference in this prospectus shall be deemed to
be modified or superseded for the purposes of this prospectus to
the extent that a statement contained in this prospectus, or in
any other subsequently filed document which also is incorporated
or is deemed to be incorporated by reference in this prospectus,
modifies or supersedes such statement. The modifying or
superseding statement need not state that it has modified or
superseded a prior statement or include any other information
set forth in the document that it modifies or supersedes. The
36
making of a modifying or superseding statement shall not be
deemed an admission for any purposes that the modified or
superseded statement, when made, constituted a
misrepresentation, an untrue statement of a material fact or an
omission to state a material fact that is required to be stated
or that is necessary to make a statement not misleading in light
of the circumstances under which it was made. Any statement so
modified or superseded shall not be deemed in its unmodified or
prior form to constitute a part of this prospectus.
Documents filed
as part of the registration statement
The following documents have been or will be filed with the SEC
as part of the registration statement of which this prospectus
forms a part:
|
|
|
the documents referred to under the heading Documents
incorporated by reference;
|
|
the form of underwriting agreement;
|
|
consent of PricewaterhouseCoopers LLP;
|
|
consent of Fasken Martineau DuMoulin LLP;
|
|
consent of Heenan Blaikie LLP;
|
|
consent of Pincock Allen & Holt;
|
|
consent of Susan Poos, P.E.;
|
|
consent of Richard J. Lambert, P.E.;
|
|
consent of Richard Addison, P.E., C Eng, Eur.Ing;
|
|
consent of SNC-Lavalin;
|
|
consent of Aker Kvaerner Metals Inc.;
|
|
consent of Marston & Marston, Inc.; and
|
|
powers of attorney from our directors and officers.
|
Additional
information
We have filed with the SEC a registration statement on
Form F-10
relating to the common shares to which this offering relates.
This prospectus, which constitutes a part of the registration
statement, does not contain all of the information contained in
the registration statement, certain items of which are contained
in the exhibits to the registration statement as permitted by
the rules and regulations of the SEC.
We are subject to the information requirements of the
U.S. Exchange Act and applicable Canadian securities
legislation, which require us to file or furnish reports and
other information with the SEC and with the securities
regulators in Canada. Under a multi-jurisdictional disclosure
system adopted by the United States, documents and other
information that we file with or furnish to the SEC may be
prepared in accordance with the disclosure requirements of
Canada, which are different from those of the United States
(materially different in some circumstances). As a foreign
private issuer, we are exempt from the rules under the
U.S. Exchange Act prescribing the furnishing and content of
proxy statements, and our officers, directors and principal
shareholders are exempt from the reporting and short swing
profit recovery provisions contained in Section 16 of the
U.S. Exchange Act. In addition, we are not required to
publish financial statements as promptly as U.S. companies.
You may read any document that we have filed with the SEC at the
SECs public reference room in Washington, D.C. You
may also obtain copies of those documents from the public
reference room of the SEC at 100 F Street, N.E.,
Washington, D.C. 20549 by paying a fee. You should call
37
the SEC at
1-800-SEC-0330
or access its website at www.sec.gov for further
information about the public reference rooms. You may read and
download documents we have publicly filed with the SECs
Electronic Data Gathering and Retrieval system at
www.sec.gov. You may read and download any public
document that we have filed with the Canadian securities
regulatory authorities at www.sedar.com.
Enforcement of
civil liabilities
We are a corporation existing under the Business Corporations
Act (Yukon). Some of our directors and some of the experts named
in this prospectus are residents of Canada or otherwise reside
outside the United States, and all or a substantial portion of
their assets, and a substantial portion of our assets, are
located outside the United States. We have appointed an agent
for service of process in the United States, but it may be
difficult for holders of common shares who reside in the United
States to effect service within the United States upon those
directors and experts who are not residents of the United
States. It may also be difficult for holders of common shares
who reside in the United States to realize in the United States
upon judgments of courts of the United States predicated upon
our civil liability and the civil liability of our directors,
officers and experts under the U.S. federal securities
laws. We have been advised by our Canadian counsel, Fasken
Martineau DuMoulin LLP, that a judgment of a U.S. court
predicated solely upon civil liability under U.S. federal
securities laws would probably be enforceable in Canada if the
U.S. court in which the judgment was obtained had a basis
for jurisdiction in the matter that would be recognized by a
Canadian court for the same purposes. We have also been advised
by Fasken Martineau DuMoulin LLP, however, that there is
substantial doubt whether an action could be brought in Canada
in the first instance on the basis of liability predicated
solely upon U.S. federal securities laws.
We filed with the SEC, concurrently with our registration
statement on
Form F-10
of which this prospectus is a part, an appointment of agent for
service of process on
Form F-X.
Under the
Form F-X,
we appointed Gold Reserve Corporation, our Montana subsidiary,
as our agent for service of process in the United States in
connection with any investigation or administrative proceeding
conducted by the SEC, and any civil suit or action brought
against or involving us in a U.S. court arising out of or
related to or concerning the offering of the common shares under
this prospectus.
38
16,000,000
Shares
Class A Common
Shares
Prospectus
|
|
|
JPMorgan
|
|
RBC Capital Markets
|
|
Cormark Securities
|
,
2007
PART II
INFORMATION NOT REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS
Indemnification of Directors and Officers.
The only statutes, charter provisions, bylaws, contracts or other arrangements under which a
director or officer of the Registrant is insured or indemnified in any manner against liability
which such officer of director may incur in such capacity is Section 126 of the Yukon Business
Corporations Act (the Act) and Sections 7.02 through 7.04 of the Registrants bylaws. Taken
together, the statutory and bylaw provisions generally allow the Registrant to indemnify its
directors or officers against liability and expenses if the officer or director seeking indemnity
(a) acted honestly and in good faith with a view to the best interest of the Registrant, and (b) in
the case of a criminal or administrative action or proceeding that is enforced by a monetary
penalty, the officer or director had reasonable grounds for believing the conduct was lawful. Such
statutory and bylaw provisions also allow officers and directors to seek indemnity if they have (i)
fulfilled the requirements for (a) and (b), (ii) are fairly and reasonably entitled to indemnity,
and (iii) were substantially successful on the merits in the defense of the action or proceeding.
YUKON LAW
Section 126 of the Act is set forth in its entirety as follows. All capitalized terms used herein
but not otherwise defined shall have the meanings as set forth in the Act.
126.(1) |
|
|
Except in respect of an action by or on behalf of the corporation or body corporate to
procure a judgment in its favor, a corporation may indemnify directors or officers of the
corporation, former directors or officers of the corporation or persons who act or acted at
the corporations request as directors or officers of a body corporate of which the
corporation is or was a shareholder or creditor, and their heirs and legal representatives,
against all costs, charges and expenses, including an amount paid to settle an action or
satisfy a judgment, reasonably incurred by them in respect of any civil, criminal or
administrative action or proceeding to which they are made party because they are or have been
directors or officers of that corporation or body corporate, if: |
|
(a) |
|
they acted honestly and in good faith with a view to the best interests of the
corporation; and |
|
|
(b) |
|
in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, they had reasonable grounds for believing that their
conduct was lawful. |
|
(2) |
|
A corporation may with the approval of the Supreme Court indemnify persons referred to
in subsection (1) in respect of an action by or on behalf of the corporation or body
corporate to procure a judgment in its favor, to which they are made party by reason of
being or having been directors or officers of the corporation or body corporate, against
all costs, charges and expenses reasonably incurred by them in connection with the action
if they fulfill the conditions set out in paragraphs (1)(a) and (b). |
|
|
(3) |
|
Despite anything in this section, persons referred to in subsection (1) are entitled
to indemnity from the corporation in respect of all costs, charges and expenses reasonably
incurred by them in connection with the defense of any civil, criminal or administrative
action or proceeding to which they are made party because they are or have been directors
or officers of the corporation or body corporate, if the person seeking indemnity: |
|
(a) |
|
was substantially successful on the merits in the defense of the action or
proceeding; |
|
|
(b) |
|
fulfills the conditions set out in paragraphs (1)(a) and (b); and |
|
|
(c) |
|
is fairly and reasonably entitled to indemnity. |
|
(4) |
|
A corporation may purchase and maintain insurance for the benefit of any person
referred to in subsection (1) against any liability incurred by them: |
|
(a) |
|
in their capacity as a director or officer of the corporation, except when the
liability relates to their failure to act honestly and in good faith with a view to the
best interests of the corporation; or |
|
|
(b) |
|
in their capacity as a director or officer of another body corporate if they
act or acted in that capacity at the corporations request, except when the liability
relates to their failure to act honestly and in good faith with a view to the best
interests of the body corporate. |
II-1
|
(5) |
|
A corporation or a person referred to in subsection (1) may apply to the Supreme Court
for an order approving an indemnity under this section and the Supreme Court may so order
and make any further order it thinks fit. |
|
|
(6) |
|
On an application under subsection (5), the Supreme Court may order notice to be given
to any interested person and that person is entitled to appear and be heard in person or by
counsel. |
Sections 7.02 through 7.04 of the Registrants bylaws are set forth in their entirety as follows.
All capitalized terms used herein but not otherwise defined shall have the meanings as set forth in
the Registrants bylaws.
|
7.02 |
|
Limitation of Liability |
|
|
|
|
Subject to the Act, no director or officer, or former director or officer, of the Corporation
shall be liable for the acts, receipts, neglects or defaults of any other director or officer
or employee, or for the joining in any receipt or act for conformity, or for any loss or
damage or expense happening to the Corporation through the insufficiency or deficiency of
title to any property acquired by the Corporation or for or on behalf of the Corporation or
for the insufficiency or deficiency of any security in or upon which any of the money of or
belonging to the Corporation shall be placed or invested, or for any loss or damage arising
from the bankruptcy, insolvency or tortious act of any person, firm or corporation including
any person, firm or corporation with whom or with which any moneys, securities or effects
shall be lodged or deposited, or for any loss, conversion, misapplication or misappropriation
of or any damage resulting from any dealing with any moneys, securities or other assets of or
belonging to the Corporation or for any other loss, damage or misfortune whatsoever which may
happen in the execution of the duties of his respective office or trust or in relation thereto
unless the same shall happen by or through his failure to exercise the powers and to discharge
the duties of his office honestly and in good faith with a view to the best interest of the
Corporation and to exercise the care, diligence and skill that a reasonably prudent person
would exercise in comparable circumstances. Any repeal or modification of the foregoing
provisions of this paragraph 7.02 shall not adversely affect any limitation on the personal
liability of a director or officer of the Corporation arising from an act or omission
occurring prior to the time of such repeal or amendment. In addition to the circumstances in
which a director or officer of the Corporation is not personally liable as set forth in the
foregoing provisions of this paragraph 7.02, a director or officer shall not be liable to the
Corporation or its shareholders to such further extent as permitted by any law hereafter
enacted, including, without limitation, any subsequent amendment to the Act. |
|
|
7.03 |
|
Indemnity |
|
|
|
|
Subject to the Act, the Corporation shall indemnify a director or officer, a former director
or officer, and a person who acts or acted at the Corporations request as a director or
officer of a body corporate of which the Corporation is or was a shareholder or creditor, and
his heirs and legal representatives, against all costs, charges and expenses, including any
amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect
of any civil, criminal or administrative action or proceeding to which he is made a party by
reason of being or having been a director or officer of the Corporation or such body
corporate, if: |
|
(a) |
|
he acted honestly and in good faith with a view to the best interests of the
Corporation; and |
|
|
(b) |
|
in the case of a criminal or administrative action or proceeding that is enforced
by a monetary penalty, he had reasonable grounds for believing his conduct was lawful. |
|
|
|
The Corporation shall indemnify the directors and officers of the Corporation to the fullest
extent permitted by law. The Corporation may indemnify any employee or agent of the
Corporation to the fullest extent permitted by law. In addition to the circumstances in which
a director or officer of the Corporation is indemnified as set forth in the foregoing
provisions of this paragraph 7.03, a director or officer shall be indemnified by the
Corporation to such further extent as permitted by any law hereafter enacted, including,
without limitation, any subsequent amendment to the Act. |
|
|
7.04 |
|
Insurance |
|
|
|
|
The Corporation may, subject to and in accordance with the Act, purchase and maintain
insurance for the benefit of any director or officer, or former director or officer, of the
Corporation as such against any liability incurred by him. The Corporation may provide such
insurance to directors and officers regardless of whether such directors and officers are
indemnified pursuant to paragraph 7.03 above. |
II-2
The Registrant also maintains insurance for the benefit of its directors and officers against
liability in their respective capacities as directors and officers. The directors and officers are
not required to pay any premium in respect of this insurance. The policy contains various industry
exclusions and no claims have been made thereunder to date.
The underwriting agreement contains provisions by which the underwriters agree to indemnify the
Registrant, each of the directors and officers of the Registrant and each person who controls the
Registrant within the meaning of the Securities Act of 1933, as amended, with respect to
information furnished by the underwriters for use in this Registration Statement.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended,
may be permitted to directors, officers or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that in the opinion of the U.S. Securities
and Exchange Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, and is therefore unenforceable.
II-3
EXHIBITS
|
|
|
Exhibit |
|
Description |
|
|
|
3.1
|
|
Form of Underwriting Agreement |
|
|
|
4.1
|
|
Annual information form of the Registrant for the year ended December 31, 2006 (incorporated
by reference to the Registrants annual report on Form 40-F filed with the Commission on March
30, 2007) |
|
|
|
4.2
|
|
Audited annual consolidated comparative financial statements of the Registrant for the year
ended December 31, 2006 and the auditors report thereon (incorporated by reference to the
Registrants annual report on Form 40-F filed with the Commission on March 30, 2007) |
|
|
|
4.3
|
|
Managements discussion and analysis of the Registrant for the year ended December 31, 2006
(incorporated by reference to the Registrants annual report on Form 40-F filed with the
Commission on March 30, 2007) |
|
|
|
4.4
|
|
Material Change Report dated March 28, 2007 (incorporated by reference to the Registrants
Form 6-K furnished to the Commission on March 29, 2007) |
|
|
|
4.5
|
|
The summary, being pages 1.1 to 1.13 inclusive, of NI 43-101 Technical Report, Brisas
Project, Venezuela, Feasibility Update dated October 30, 2006 as prepared by Pincock Allen &
Holt, Inc. (incorporated by reference to the Registrants Form 6-K furnished to the Commission
on November 29, 2006) |
|
|
|
4.6
|
|
Management information circular dated April 20, 2007 prepared in connection with the
Registrants annual and special meeting of shareholders to be held on June 7, 2007
(incorporated by reference to the Registrants Form 6-K furnished to the Commission on May 2,
2007) |
|
|
|
4.7
|
|
Material Change Report dated
May 9, 2007 (incorporated by reference to the Registrants
Form 6-K furnished to the Commission on May 9, 2007) |
|
|
|
4.8
|
|
Interim unaudited consolidated
financial statements for the three-month period ended March 31,
2007, together with managements discussion and analysis for the
three-month period ended March 31, 2007 (incorporated by reference to
the Registrants Form 6-K furnished to the Commission on
May 14, 2007) |
|
|
|
5.1
|
|
Consent of PricewaterhouseCoopers LLP |
|
|
|
5.2
|
|
Consent of Fasken Martineau DuMoulin LLP |
|
|
|
5.3
|
|
Consent of Heenan Blaikie LLP |
|
|
|
5.4
|
|
Consent of Pincock, Allen & Holt, Inc. |
|
|
|
5.5*
|
|
Consent of Susan Poos, P.E. |
|
|
|
5.6*
|
|
Consent of Richard Addison, P.E.,
C. Eng, Eur.Ing. |
|
|
|
5.7*
|
|
Consent of Richard J. Lambert, P.E. |
|
|
|
5.8
|
|
Consent of Aker Kvaerner Metals, Inc. |
|
|
|
5.9
|
|
Consent of SNC Lavalin |
|
|
|
5.10
|
|
Consent of Marston & Marston, Inc. |
|
|
|
6.1*
|
|
Power of Attorney (see signature page) |
II-4
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
ITEM 1. UNDERTAKING.
The Registrant undertakes to make available, in person or by telephone, representatives to respond
to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the
Commission staff, information relating to the securities registered pursuant to this Form F-10 or
to transactions in said securities.
ITEM 2. CONSENT TO SERVICE OF PROCESS.
(a) Prior
to the filing of this Amendment No. 1 to Form F-10, the
Registrant filed with the Commission a
written irrevocable consent and power of attorney on Form F-X.
(b) Any change to the name or address of the agent for service of the Registrant will be
communicated promptly to the Commission by amendment to Form F-X referencing the file number of the
relevant registration statement.
III-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
F-10 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Spokane, State of Washington, on May 14, 2007.
|
|
|
|
|
|
|
|
|
GOLD RESERVE INC. |
|
|
|
|
By:
|
|
/s/ Rockne J. Timm |
|
|
|
|
|
|
|
|
|
|
|
ROCKNE J. TIMM |
|
|
|
|
Chief Executive Officer and Director |
|
|
Pursuant
to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to the Registration Statement
has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Rockne J. Timm
ROCKNE J. TIMM
|
|
Chief Executive Officer
(Principal Executive Officer) and
Director
|
|
May 14, 2007 |
|
|
|
|
|
|
|
Vice President Finance and Chief
Financial Officer (Principal
Financial and Accounting Officer)
|
|
May 14, 2007 |
|
|
|
|
|
|
|
President and Director
|
|
May 14, 2007 |
|
|
|
|
|
|
|
Senior Vice President and Director
|
|
May 14, 2007 |
|
|
|
|
|
|
|
Chairman of the Board
|
|
May 14, 2007 |
|
|
|
|
|
|
|
Director
|
|
May 14, 2007 |
|
|
|
|
|
|
|
Director
|
|
May 14, 2007 |
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* |
By: |
/s/ Rockne J. Timm |
|
|
|
|
|
|
|
|
|
Name: |
Rockne J. Timm |
|
|
|
|
|
Attorney-in-Fact |
|
|
III-2
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, as amended, the Authorized
Representative has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, solely in his capacity as the duly authorized representative of the Registrant in the
United States, in the City of Spokane, in the State of Washington, on
this 14th day of
May, 2007.
|
|
|
|
|
|
|
|
|
GOLD RESERVE CORPORATION |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Rockne J. Timm |
|
|
|
|
|
|
|
|
|
|
|
ROCKNE J. TIMM |
|
|
|
|
President |
|
|
III-3
EXHIBIT INDEX
|
|
|
Exhibit |
|
Description |
|
|
|
3.1
|
|
Form of Underwriting Agreement |
|
|
|
4.1
|
|
Annual information form of the Registrant for the year ended December 31, 2006 (incorporated
by reference to the Registrants annual report on Form 40-F filed with the Commission on March
30, 2007) |
|
|
|
4.2
|
|
Audited annual consolidated comparative financial statements of the Registrant for the year
ended December 31, 2006 and the auditors report thereon (incorporated by reference to the
Registrants annual report on Form 40-F filed with the Commission on March 30, 2007) |
|
|
|
4.3
|
|
Managements discussion and analysis of the Registrant for the year ended December 31, 2006
(incorporated by reference to the Registrants annual report on Form 40-F filed with the
Commission on March 30, 2007) |
|
|
|
4.4
|
|
Material Change Report dated March 28, 2007 (incorporated by reference to the Registrants
Form 6-K furnished to the Commission on March 29, 2007) |
|
|
|
4.5
|
|
The summary, being pages 1.1 to 1.13 inclusive, of NI 43-101 Technical Report, Brisas
Project, Venezuela, Feasibility Update dated October 30, 2006 as prepared by Pincock Allen &
Holt, Inc. (incorporated by reference to the Registrants Form 6-K furnished to the Commission
on November 29, 2006) |
|
|
|
4.6
|
|
Management information circular dated April 20, 2007 prepared in connection with the
Registrants annual and special meeting of shareholders to be held on June 7, 2007
(incorporated by reference to the Registrants Form 6-K furnished to the Commission on May 2,
2007) |
|
|
|
4.7
|
|
Material Change Report dated
May 9, 2007 (incorporated by reference to the Registrants
Form 6-K furnished to the Commission on May 9, 2007) |
|
|
|
4.8
|
|
Interim unaudited consolidated
financial statements for the three-month period ended March 31,
2007, together with managements discussion and analysis for the
three-month period ended March 31, 2007 (incorporated by reference to
the Registrants Form 6-K furnished to the Commission on
May 14, 2007) |
|
|
|
5.1
|
|
Consent of PricewaterhouseCoopers LLP |
|
|
|
5.2
|
|
Consent of Fasken Martineau DuMoulin LLP |
|
|
|
5.3
|
|
Consent of Heenan Blaikie LLP |
|
|
|
5.4
|
|
Consent of Pincock, Allen & Holt, Inc. |
|
|
|
5.5*
|
|
Consent of Susan Poos, P.E. |
|
|
|
5.6*
|
|
Consent of Richard Addison, P.E.,
C. Eng, Eur.Ing. |
|
|
|
5.7*
|
|
Consent of Richard J. Lambert, P.E. |
|
|
|
5.8
|
|
Consent of Aker Kvaerner Metals, Inc. |
|
|
|
5.9
|
|
Consent of SNC Lavalin |
|
|
|
5.10
|
|
Consent of Marston & Marston, Inc. |
|
|
|
6.1*
|
|
Power of Attorney (see signature page) |
III-4
Gold Reserve
Exhibit
3.1
GOLD RESERVE INC.
Class A Common Shares
Underwriting Agreement
May , 2007
J.P. Morgan Securities Inc.
RBC Dominion Securities Inc.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Gold Reserve Inc., a Yukon corporation (the Company), proposes to issue and sell to the
several Underwriters listed in Schedule 1 hereto (the Underwriters), for whom you are acting as
representatives (the Representatives), an aggregate of Class A common shares, no par value per
share, of the Company (the Underwritten Shares) and, at the option of the Underwriters, up to an
additional Class A common shares of the Company (the Option Shares). The Underwritten Shares
and the Option Shares are herein referred to as the Shares. The common shares of the Company to
be outstanding after giving effect to the sale of the Shares are herein referred to as the Common
Shares. The Common Shares, including the Shares, will have attached thereto rights (the Rights)
to purchase additional Common Shares. The Rights are to be issued pursuant to a Rights Agreement
(the Rights Agreement) dated October 5, 1998, as amended and continued, between the Company and
Computershare Trust Company of Canada (now Computershare Investor Services Inc.).
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Shares, as follows:
1. Registration Statement. The Company is eligible to file a short form prospectus
with the applicable securities regulatory authority in each of the provinces of Canada, other than
Quebec, under National Instrument 44-101 Short Form Prospectus Distributions and is eligible to
use the rules and procedures established pursuant to the Canadian Securities Laws in National
Instrument 44-103 Post-Receipt Pricing for the pricing of securities after the final receipt for
a prospectus has been obtained (the PREP Procedures); the Company has identified the Ontario
Securities Commission (the Reviewing Authority) as its principal regulator in respect of the
offering of the Shares pursuant to National Policy 43-201 Mutual Reliance Review System for
Prospectuses and Annual Information
Forms (the MRRS); the Company has prepared and filed with the applicable securities
regulatory authority (collectively, the Canadian Authorities) in
2
each of the provinces of Canada,
other than Quebec (collectively, the Canadian Jurisdictions), under the MRRS and in conformity in
all material respects with the applicable securities legislation of the Canadian Jurisdictions and
the respective rules, regulations and written and published policies thereunder (the Canadian
Securities Laws), a preliminary short form base PREP prospectus, dated May 7, 2007 (the Canadian
Preliminary Prospectus) and a final short form base PREP prospectus, dated May , 2007 (the
Canadian Base PREP Prospectus), omitting the PREP Information (as defined below), and a MRRS
Decision Document for each of the Canadian Preliminary Prospectus and the Canadian Base PREP
Prospectus has been obtained. The Company will file with each of the Canadian Authorities in
accordance with the PREP Procedures a short form supplemented PREP prospectus consisting of the
Canadian Base PREP Prospectus incorporating the PREP Information (as defined below) (the Canadian
Prospectus). As filed, such Canadian Prospectus shall contain all information required by
applicable Canadian Securities Laws and, except for the inclusion of the PREP Information (as
defined below) or to the extent the Representatives shall agree in writing to a modification, shall
be in all respects in the form of the Canadian Base PREP Prospectus. No order suspending the
distribution of the Shares has been issued by any of the Canadian Authorities and no proceedings
for that purpose have been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Canadian Authorities and any request on the part of the Canadian Authorities
for additional information has been complied with. The term PREP Information means the
information, if any, included in the Canadian Prospectus that is omitted from the Canadian Base
PREP Prospectus in accordance with the PREP Procedures but that is deemed under the PREP Procedures
to be incorporated by reference into the Canadian Base PREP Prospectus as of the date of the
Canadian Prospectus. Any reference herein to the Canadian Preliminary Prospectus, the Canadian
Base PREP Prospectus and the Canadian Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein as of the date of filing thereof; and any reference
herein to any amendment or supplement with respect to any of the Canadian Preliminary
Prospectus, the Canadian Base PREP Prospectus and the Canadian Prospectus shall be deemed to refer
to and include (i) the filing of any document with the Canadian Authorities incorporated or deemed
to be incorporated therein by reference after the date of filing of such Canadian Preliminary
Prospectus, Canadian Base PREP Prospectus or Canadian Prospectus and (ii) any such document so
filed.
The Company meets the general eligibility requirements for the use of Form F-10 under the
Securities Act of 1933, as amended (the Securities Act) and has prepared and filed with the
United States Securities and Exchange Commission (the Commission) a registration statement under
the Securities Act and the rules and regulations of the Commission (the Rules and Regulations) on
Form F-10 (No. 333-142655), including a related preliminary prospectus (which consists of the
Canadian Preliminary Prospectus with such deletions therefrom and additions thereto as are
permitted or required by Form F-10 and the applicable Rules and Regulations) (the U.S. Preliminary
Prospectus), for registration under the Securities Act of the offering and sale of the Shares.
The Company has filed with the Commission an amendment to such registration statement including the
U.S. pricing prospectus (which consists of the Canadian Base PREP Prospectus with such deletions
therefrom and additions thereto as are permitted or required by Form F-10 and the applicable Rules
and Regulations) (the U.S.
Pricing Prospectus). The Company has included in such filing, as amended at the effective
date, all information required by the Securities Act and the Rules and Regulations to be included
in such
3
registration statement. The registration statement, in the form previously delivered to
you, has become effective under the Securities Act pursuant to Rule 467(a) under the Securities
Act. Such registration statement, as amended, including any exhibits and all documents
incorporated therein by reference, as of the time it became effective, is referred to herein as the
Registration Statement. In connection with the filing of the Registration Statement, the Company
has filed with the Commission an appointment of agent for service of process upon the Company on
Form F-X under the Securities Act. The Company will file with the Commission a U.S. supplemental
prospectus in accordance with General Instruction II.L of Form F-10 (which shall consist of the
Canadian Prospectus with such deletions therefrom and additions thereto as are permitted or
required by Form F-10 and the applicable Rules and Regulations) (the U.S. Prospectus). As filed,
such U.S. Prospectus shall contain all information required by the Securities Act and the Rules and
Regulations and, except for the inclusion of the PREP Information or to the extent the
Representatives shall agree in writing to a modification, shall be in all respects in the form of
the U.S. Pricing Prospectus. No stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission
and any request on the part of the Commission for additional information has been complied with.
Any reference herein to the U.S. Preliminary Prospectus, the U.S. Pricing Prospectus and the
U.S. Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein as of the date of filing thereof; and any reference herein to any amendment or
supplement with respect to any of the U.S. Preliminary Prospectus, the U.S. Pricing Prospectus
and the U.S. Prospectus shall be deemed to refer to and include (i) the filing of any document with
the Canadian Authorities or the Commission incorporated or deemed to be incorporated therein by
reference after the date of filing of such U.S. Preliminary Prospectus, U.S. Pricing Prospectus or
U.S. Prospectus and (ii) any such document so filed. As used herein, Preliminary Prospectuses
shall mean, collectively, the Canadian Preliminary Prospectus and the U.S. Preliminary Prospectus;
Pricing Prospectuses shall mean, collectively, the Canadian Base PREP Prospectus and the U.S.
Pricing Prospectus; and Prospectuses shall mean, collectively, the Canadian Prospectus and the
U.S. Prospectus.
At or prior to the time when sales of the Shares were first made (the Time of Sale), the
Company had prepared the following information (collectively with the pricing information set forth
on Annex B, the Time of Sale Information): the U.S. Pricing Prospectus, dated May , 2007, and
each free-writing prospectus (as defined pursuant to Rule 405 under the Securities Act) listed on
Annex B hereto.
Concurrently with the offering of Shares, the Company is filing a registration statement on
Form F-10 in the United States and prospectuses in each of Canada and the United States in
connection with a public offering (the Concurrent Offering) of US$75,000,000 principal amount of
its % Senior Subordinated Convertible Notes due 2022, which offering size may increase. Neither
this offering, nor the Concurrent Offering, is conditional on the occurrence of the other.
4
2. Purchase of the Shares by the Underwriters. (a) On the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, the Company agrees to issue and sell the Shares to the several Underwriters as provided in
this Agreement and each Underwriter, agrees, severally and not jointly, to purchase from the
Company the respective number of Underwritten Shares set forth opposite such Underwriters name in
Schedule 1 hereto. The price per Share to the public will be Cdn$ for Shares sold in Canada and
US$ for Shares sold in the United States or other countries (the Purchase Price).
In addition, on the basis of the representations, warranties and agreements set forth herein
and subject to the conditions set forth herein, the Company agrees to issue and sell the Option
Shares to the several Underwriters as provided in this Agreement and the Underwriters shall have
the option to purchase, severally and not jointly, from the Company the Option Shares at the
Purchase Price.
If any Option Shares are to be purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number
of Option Shares being purchased as the number of Underwritten Shares set forth opposite the name
of such Underwriter in Schedule 1 hereto (or such number increased as set forth in Section 10
hereof) bears to the aggregate number of Underwritten Shares being purchased from the Company by
the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares
as the Representatives in their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Shares at any time in whole,
or from time to time in part, on or before the thirtieth day following the Closing Date (as
hereinafter defined), by written notice from the Representatives to the Company. Such notice shall
set forth the aggregate number of Option Shares as to which the option is being exercised and the
date and time when the Option Shares are to be delivered and paid for which may be the same date
and time as the Closing Date but shall not be earlier than the Closing Date nor later than the
tenth full business day (as hereinafter defined) after the date of such notice (unless such time
and date are postponed in accordance with the provisions of Section 10 hereof). Any such notice
shall be given at least two business days prior to the date and time of delivery specified therein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Shares in the United States and in the Canadian Jurisdictions, either directly or through their
respective U.S. or Canadian broker-dealer affiliates upon the terms set forth in the Prospectuses,
as soon after the effectiveness of this Agreement as in the judgment of the Representatives is
advisable, and initially to offer the Shares on the terms set forth in the Prospectuses. The
Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell Shares purchased by it
to or through any Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representatives in the case of the Underwritten Shares,
at the Toronto offices of Fasken Martineau DuMoulin LLP at 8:00 A.M. New York City time on May ,
2007, or at such other time or place on the same or such other
5
date, not later than the fifth
business day thereafter, as the Representatives and the Company may agree upon in writing or, in
the case of the Option Shares, on the date and at the time and place specified by the
Representatives in the written notice of the Underwriters election to purchase such Option Shares.
The time and date of such payment for the Underwritten Shares is referred to herein as the
Closing Date and the time and date for such payment for the Option Shares, if other than the
Closing Date, is herein referred to as the Additional Closing Date.
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Representatives for the respective accounts
of the several Underwriters of the Shares to be purchased on such date in definitive form
registered in such names and in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the sale of the Shares duly
paid by the Company.
(d) As compensation to the Underwriters for their commitments hereunder, the Company will pay,
or cause to be paid, to J.P. Morgan Securities Inc., for the accounts of the several Underwriters,
an amount equal to US$ per share for the Shares sold in the United States or other countries and
an amount equal to Cdn$ per share for the Shares sold in Canada, to be delivered by the Company
hereunder on the Closing Date or the Additional Closing Date, as the case may be. On May , 2007,
or on such other date, not later than the fifth Business Day thereafter, as the Representatives and
the Company may agree upon in writing, or, in the case of the Option Shares, on the date and time
specified by the Representatives in the written notice of the Underwriters election to purchase
such Option Shares the Company will pay or cause to be paid by wire transfer, in immediate
available funds, such commission to the account specified by J.P. Morgan Securities Inc.
(e) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arms length contractual counterparty to the Company with respect to the offering of
Shares contemplated hereby (including in connection with determining the terms of the offering) and
not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representatives nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Canadian Prospectuses. The Canadian Preliminary Prospectus and the Canadian Base PREP
Prospectus did, and the Canadian Prospectus (and any further amendments or supplements
thereto) will, comply in all material respects with the applicable requirements of
6
Canadian
Securities Laws; each of the Canadian Preliminary Prospectus and the Canadian Base PREP Prospectus,
as of the time of filing thereof, did not, and the Canadian Prospectus (and any further amendments
or supplements thereto) will not, include any untrue statement of a material fact or omit to state
a material fact that is required to be stated or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not false or misleading, and each of the
Canadian Preliminary Prospectus and the Canadian Base PREP Prospectus, as of the time of filing
thereof, constituted, and the Canadian Prospectus (and any further amendments or supplements
thereto) will, constitute, full, true and plain disclosure of all material facts relating to the
Shares and to the Company; provided that the Company makes no representation and warranty
with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by, or on behalf of,
such Underwriter through the Representatives expressly for use in any Canadian Preliminary
Prospectus, the Canadian Base PREP Prospectus or the Canadian Prospectus.
(b) U.S. Prospectuses. No order preventing or suspending the use of the U.S. Preliminary
Prospectus or the U.S. Pricing Prospectus or any Issuer Free Writing Prospectus (as hereinafter
defined) has been issued by the Commission, and each of the U.S. Preliminary Prospectus and the
U.S. Pricing Prospectus, at the time of filing thereof, complied in all material respects with the
applicable provisions of the Securities Act and the Rules and Regulations, and did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and warranty with
respect to any statements or omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by, or on behalf of, such
Underwriter through the Representatives expressly for use in any U.S. Preliminary Prospectus, U.S.
Pricing Prospectus or any Issuer Free Writing Prospectus.
(c) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain
any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to
any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by, or on behalf of, such Underwriter through
the Representatives expressly for use in such Time of Sale Information. No statement of material
fact included in the Prospectuses has been omitted from the Time of Sale Information and no
statement of material fact included in the Time of Sale Information that is required to be included
in the Prospectuses has been omitted therefrom.
(d) Issuer Free Writing Prospectus. Other than the Preliminary Prospectuses, the Pricing
Prospectuses, and the Prospectuses, the Company (including its agents and representatives, other
than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved
or referred to and will not prepare, make, use, authorize, approve or refer to any written
communication (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell
or solicitation of an offer
to buy the Shares (each such communication
7
by the Company or its agents and representatives
(other than a communication referred to in clause (i) below) an Issuer Free Writing Prospectus)
other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Annex B hereto
and any other written communications approved in writing in advance by the Representatives. Each
such Issuer Free Writing Prospectus listed on Annex B hereto complied in all material respects with
the Securities Act, has been filed in accordance with the Securities Act (to the extent required
thereby) and, when taken together with the U.S. Pricing Prospectus accompanying, or delivered prior
to delivery of, such Issuer Free Writing Prospectus, did not, and at the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any (i) statements or omissions made
in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by, or on behalf of, such
Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus or
(ii) any Issuer Free Writing Prospectus prepared by any Underwriter or other party without the
prior written consent of the Company unless such consent is not required as set forth herein.
(e) Registration Statement and U.S. Prospectus. The Registration Statement is effective under
the Securities Act. No order suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering has been initiated or threatened by
the Commission; as of the applicable effective date of the Registration Statement and any amendment
or supplement thereto and as of the Closing Date and as of the Additional Closing Date, as the case
may be, the Registration Statement complied and will comply in all material respects with the
Securities Act, and did not and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements
therein not misleading; and as of the date of the U.S. Prospectus and any amendment or supplement
thereto and as of the Closing Date and as of the Additional Closing Date, as the case may be, the
U.S. Prospectus will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement and the U.S. Prospectus and any amendment or supplement thereto.
(f) Incorporated Documents. Each document filed or to be filed with the Canadian Authorities
and incorporated, or deemed to be incorporated, by reference in the Canadian Preliminary
Prospectus, the Canadian Base PREP Prospectus and the Canadian Prospectus complied, or will comply,
when so filed in all material respects with the requirements of Canadian Securities Laws, and none
of such documents contained, or will contain, at the time of its filing any untrue statement of a
material fact or omitted or will omit at the time of its filing to
8
state a material fact required
to be stated
therein or necessary to make the statements therein, in light of the circumstances under which
they were or are made, not false or misleading.
The documents incorporated by reference in the Registration Statement, the U.S. Prospectus or
the Time of Sale Information, when they were or hereafter are filed with the Commission, as the
case may be, conformed or will conform in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulation of the Commission
thereunder (collectively, the Exchange Act) and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading.
(g) Reporting Issuer. The Company is a reporting issuer under the securities laws of each
Canadian Jurisdiction that recognizes the concept of reporting issuer and is not on the list of
defaulting reporting issuers maintained by the Canadian Authorities in each such Canadian
Jurisdiction that maintains such a list; the Company is subject to the reporting requirements of
the Exchange Act and is current in its filings; where applicable, the Company is in compliance with
its timely disclosure obligations under the applicable securities laws in all of the Canadian
Jurisdictions and the United States and under the rules of the Toronto Stock Exchange and the
American Stock Exchange and, without limiting the generality of the following, there has not
occurred any material adverse change in the business, affairs, operations, assets, liabilities
(contingent or otherwise) or capital of the Company and the Subsidiaries (taken as a whole) which
has not been publicly disclosed; the Company has not filed any confidential material change reports
since the date of such statements which remain confidential at the date hereof.
(h) Trading. The Shares are duly listed, and admitted and authorized for trading, subject to
official notice of issuance, on the American Stock Exchange and have been conditionally approved
for listing on the Toronto Stock Exchange; the certificates for the Shares comply with all
applicable provisions of the Business Corporations Act (Yukon) and the Toronto Stock Exchange. No
order, ruling or determination having the effect of suspending the sale or ceasing the trading of
the Shares, the Common Shares or any other security of the Company has been issued or made by any
securities commission or stock exchange or any other regulatory authority and is continuing in
effect and no proceedings for that purpose have been instituted or are pending or, to the best of
the Companys knowledge, contemplated or threatened by any such authority or under any securities
laws in the United States or Canada.
(i) Publicly Available Documents. There are no reports or information that in accordance with
the requirements of the Canadian Securities Laws must be made publicly available in connection with
the offering of the Shares that have not been made publicly available as required; there are no
documents required to be filed as of the date hereof with the Canadian Authorities or with any
other Canadian securities regulatory authority in connection with the Canadian Preliminary
Prospectus, Canadian Base PREP Prospectus or the Canadian Prospectus that have not been filed as
required.
(j) Financial Statements. (i) The financial statements and the related notes thereto of the
Company and its consolidated subsidiaries included or incorporated by reference in the
9
Registration
Statement, the Pricing Prospectuses and the Prospectuses (A) comply with the requirements of
the Canadian Securities Laws and with the applicable requirements of the Securities Act and the
Exchange Act, as applicable, (B) present fairly, in all material respects, the financial position
of the Company and its consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified, (C) such financial
statements have been prepared in conformity with Canadian generally accepted accounting principles
applied on a consistent basis throughout the periods covered thereby and (D) have been reconciled
to United States generally accepted accounting principles in accordance with Item 18 of Form 20-F
under the Exchange Act; and (ii) the other financial information included or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectuses has been
derived from the accounting records of the Company and its subsidiaries and presents fairly, in all
material respects, the information shown thereby.
(k) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectuses, and except as otherwise disclosed in the Registration Statement,
the Time of Sale Information and the Prospectuses (i) there has not been any change in the share
capital or long-term debt of the Company or any of its subsidiaries, or any dividend or
distribution of any kind declared, set aside for payment, paid or made by the Company on any class
of share capital, or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, properties, management, financial position,
shareholders equity, results of operations or prospects of the Company and its subsidiaries taken
as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction
or agreement (other than this Agreement and the underwriting agreement for the Concurrent Offering)
that is material to the Company and its subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a
whole; and (iii) neither the Company nor any of its subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or any action, order or decree of
any court or arbitrator or governmental or regulatory authority.
(l) Organization and Good Standing. The Company and each of the subsidiaries listed in
Schedule 2 to this Agreement (the Subsidiaries) have been duly organized and are validly existing
and in good standing under the laws of their respective jurisdictions of organization, are duly
qualified to do business and are in good standing in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the failure to be
so qualified or have such power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial position, shareholders
equity, results of operations or prospects of the Company and its subsidiaries taken as a whole (a
Material Adverse Effect). No proceedings have been instituted or, to the knowledge of the
Company, are pending for the dissolution or liquidation of the Company or any of the Subsidiaries.
The Subsidiaries listed in Schedule 2 to this Agreement
10
are the only significant subsidiaries of
the Company as defined by Rule 1-02 of Regulation S-X or that are otherwise material to the
Company.
(m) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the Prospectuses under the heading
Consolidated capitalization; all the outstanding share capital of the Company has been duly and
validly authorized and issued and are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights; except as described in or expressly contemplated by the Registration
Statement, the Time of Sale Information and the Prospectuses, and other than as provided in the
Agreement between the Company and Endeavour Financial International Corporation, dated October 1,
2004, there are no outstanding rights (including, without limitation, pre-emptive rights),
warrants or options to acquire, or instruments convertible into or exchangeable for, any common
shares or other equity interest in the Company or the Subsidiaries, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the issuance of any common shares
or any other securities of the Company or such Subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options; the share capital of the Company conforms in
all material respects to the description thereof contained in the Registration Statement, the Time
of Sale Information and the Prospectuses; and all the outstanding share capital or other equity
interests of the Subsidiaries have been duly and validly authorized and issued, are fully paid and
non-assessable (except, in the case of any foreign subsidiary, for directors qualifying shares)
and are owned directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other claim of any third
party.
(n) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; and all action required to be taken for
the due and proper authorization, execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby has been duly and validly taken.
(o) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(p) The Shares. The Shares to be issued and sold by the Company hereunder have been duly
authorized by the Company and, when issued and delivered and paid for as provided herein, will be
duly and validly issued and will be fully paid and nonassessable and will conform to the
descriptions thereof in the Time of Sale Information and the Prospectuses; and the issuance of the
Shares is not subject to any pre-emptive or similar rights; the Rights Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors rights generally or by equitable principles relating to enforceability; and the Rights
have been duly authorized by the Company and, when issued upon issuance of the Shares, will be
validly issued, and the underlying common shares have been duly authorized by the Company and
validly reserved for issuance upon the exercise in accordance with the terms of the Rights
Agreement, and when issued in accordance with the terms of the Rights Agreement will be validly
issued, fully paid and non-assessable.
11
(q) No Violation or Default. Neither the Company nor any of the Subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has
occurred that, with notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or
to which any of the property or assets of the Company or any of the Subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(r) No Conflicts. The execution, delivery and performance by the Company of this Agreement,
the issuance and sale of the Shares, the consummation of the transactions contemplated by this
Agreement and the offering and sale of the convertible notes in the Concurrent Offering will not
(i) conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the Subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is
bound or to which any of the property or assets of the Company or any of the Subsidiaries is
subject, (ii) result in any violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or any of the Subsidiaries or (iii) result in the violation
of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any
such default or violation that would not, individually or in the aggregate, have a Material Adverse
Effect
(s) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court, arbitrator, governmental or regulatory authority, stock
exchange or other third party is required for the execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares and the consummation of the
transactions contemplated by this Agreement or in connection with the Concurrent Offering, except
for (i) the registration of the Shares and the convertible notes pursuant to the Concurrent
Offering under the Securities Act, (ii) the qualification of the Shares for distribution in the
Canadian Jurisdictions as contemplated by this Agreement, (iii) such as have been obtained or such
as may be required (and shall have been obtained prior to the Closing Date) under stock exchange
regulations, and (iv) such consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities laws in connection with the
purchase and distribution of the Shares and the convertible notes pursuant to the Concurrent
Offering by the Underwriters.
(t) Statements in Registration Statement and Prospectuses. There is no franchise, contract or
other document of a character required to be described in the Registration Statement, the Time of
Sale Information or the Prospectuses, or to be filed as an exhibit thereto, which is not described
or filed as required; and the statements in the Pricing Prospectuses and the
12
Prospectuses under the
headings Income Tax Considerations, Description of Share Capital, Enforceability of Civil
Liabilities, Risk Factors Additional Risks We have determined that we are currently a
passive
foreign investment company ..., in the Canadian Prospectus under Eligibility for Investment
and Statutory Rights of Withdrawal and Rescission and in the Registration Statement under Part
II Indemnification, insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are, in all material respects, accurate and fair summaries of such
legal matters, agreements, documents or proceedings.
(u) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectuses, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending, or to the best knowledge of the Company threatened, to which
the Company or any of its subsidiaries is or may be a party or to which any property of the Company
or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could reasonably be expected to
have a Material Adverse Effect or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement; no such investigations, actions, suits or proceedings
are threatened or, to the best knowledge of the Company, contemplated by any governmental or
regulatory authority or threatened by others; and (i) there are no current or pending legal,
governmental or regulatory actions, suits or proceedings that are required by the Securities Act to
be described in the Registration Statement and the U.S. Prospectus and that is not so described in
such documents and in the Time of Sale Information or that is required by the Canadian Securities
Laws to be described in the Canadian Prospectus, and (ii) there are no statutes, regulations or
contracts or other documents that are required under the Securities Act or the Canadian Securities
Laws to be filed as exhibits to the Registration Statement or described in the Registration
Statement or the Prospectuses that are not so filed as exhibits to the Registration Statement or
described in the Registration Statement, the Time of Sale Information and the Prospectuses, as
applicable.
(v) Independent Accountants. PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries are an independent registered public accounting firm
with respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Accounting Oversight Board (United States) and as required
by the Securities Act and are an independent participating audit firm as defined in National
Instrument 52-108 -Auditor Oversight and there has never been any reportable event or disagreement
(within the meaning of National Instrument 51-102) with the present or any former auditors of the
Company.
(w) Title to Real and Personal Property. Except as disclosed in the Registration Statement,
the Time of Sale Information and the Prospectuses, the Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of
real and personal property that are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries or (ii) could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
13
(x) Property Rights. Except as disclosed in the Registration Statement, the Time of Sale
Information and the Prospectuses, no other property rights are necessary for the conduct of the
business
of the Company or any Subsidiary as currently conducted except where the lack thereof does not
and will not have a Material Adverse Effect. Except as disclosed in the Registration Statement,
the Time of Sale Information and the Prospectuses none of the Company or any subsidiary knows of
any claim or the basis for any claim that is reasonably likely to adversely affect the right
thereof to use, transfer or otherwise exploit such property rights and none of the Company or the
Subsidiaries has any responsibility or obligation to pay any material commission, royalty, licence
fee or similar payment to any person with respect to the property rights thereof.
Except as disclosed in the Registration Statement, the Time of Sale Information and the
Prospectuses, (i) the Company and the Subsidiaries hold either freehold title, mining leases,
mining concessions, mining claims, licenses of occupation, or participating interests or other
conventional property or proprietary interests or rights, recognized in the jurisdiction in which a
particular property is located, in respect of the ore bodies and minerals located in properties in
which the Company and the Subsidiaries have an interest as described in the Registration Statement,
Time of Sale Information and Prospectuses under valid, subsisting and enforceable title documents
or other recognized and enforceable agreements or instruments, sufficient to permit the Company or
applicable Subsidiary to explore the minerals relating thereto, (ii) all property, leases or claims
in which the Company or any Subsidiary has an interest or right have been validly located and
recorded in accordance with all applicable laws and are valid and subsisting where the failure to
be so would have a Material Adverse Effect on the Company and Subsidiaries, taken as a whole, and
(iii) the Company and the Subsidiaries have all necessary surface rights, access rights and other
necessary rights and interests relating to the properties in which the Company and the Subsidiaries
have an interest as described in the Registration Statement, Time of Sale Information and
Prospectuses granting the Company or applicable Subsidiary the right and ability to explore for
minerals, ore and metals for development purposes as are appropriate in view of the rights and
interest therein of the Company or applicable Subsidiary, with only such exceptions as do not
interfere with the use made by the Company or applicable Subsidiary of the rights or interest so
held, and each of the proprietary interests or rights and each of the documents, agreements and
instruments and obligations relating thereto referred to above is currently in good standing in the
name of the Company or a Subsidiary where the failure to be so would have a Material Adverse Effect
on the Company and its Subsidiaries, taken as a whole.
(y) Technical Reports. The Company has made available to the respective authors thereof prior
to the issuance of the technical reports entitled NI 43-101 Technical Report, Brisas Project,
Venezuela, Feasibility Update dated October 30, 2006 prepared by Pincock Allen & Holt for the
Company, as amended or updated (the Updated PAH Report) and the feasibility study relating to the
Brisas Project dated January 2005 prepared by Aker Kvaerner ASA, and any updates thereto (the
Feasibility Study), for the purpose of preparing the Updated PAH Report and the Feasibility
Study, as applicable, all material information requested in connection with the above reports, and
to the knowledge and belief of the Company, no such information, as of the respective dates of such
reports, contains any material misrepresentation. Except as disclosed in the Registration
Statement, the Time of Sale Information and the Prospectuses, the Company
14
does not have any
knowledge of a material adverse change in any production, cost, price, reserves or other relevant
information provided since the dates that such information was so provided.
(z) Accuracy of Technical Reports. To the best of Companys knowledge, each of the Updated
PAH Report and the Feasibility Study accurately and completely sets forth all material facts
relating to the properties that are subject thereto. Except as disclosed in the Registration
Statement, the Time of Sale Information and the Prospectuses, since the date of preparation of the
Updated PAH Report and the Feasibility Study there has been no change, to the best of the Companys
knowledge, that would disaffirm or change any aspect of the Updated PAH Report or the Feasibility
Study in any material respect. The Company is in material compliance with National Instrument
43-101 Standards of Disclosure for Mineral Projects (NI 43-101) in connection with the
disclosure of scientific or technical information made by the Company concerning each mineral
project on a property material to the Company and each of the Updated PAH Report and the
Feasibility Study comply with NI 43-101.
(aa) Reserves and Resources. The information relating to estimates by the Company of the
proven and probable reserves and the measured, indicated and inferred resources at the Brisas
Project contained in the Time of Sale Information and the Prospectuses has been prepared in all
material respects in accordance with NI 43-101. The Company believes that all of the assumptions
underlying such reserve and resource estimates are reasonable and appropriate, and, except as
disclosed in the Registration Statement, the Time of Sale Information and the Prospectuses, that
the projected capital and operating costs, production and operating results relating to its
projects and summarized in the Registration Statement, the Time of Sale Information and the
Prospectuses are achievable by the Company.
(bb) Title to Intellectual Property. The Company and the Subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses; and, to the best
knowledge of the Company, the conduct of their respective businesses does not, and the proposed
conduct of their respective businesses will not, conflict in any material respect with any such
rights of others, and the Company and its subsidiaries have not received any notice of any claim of
infringement or conflict with any such rights of others.
(cc) No Undisclosed Relationships. To the best knowledge of the Company, no relationship,
direct or indirect, exists between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, shareholders, customers or suppliers of the Company or any of
its subsidiaries, on the other, that is required by the Securities Act to be described in the
Registration Statement and the U.S. Prospectus and that is not so described in such documents and
in the Time of Sale Information or that is required by the Canadian Securities Laws to be described
in the Canadian Base PREP Prospectus and the Canadian Prospectus.
Except as disclosed in the Registration Statement, the Time of Sale Information and the
Prospectuses, neither the Company nor any of its subsidiaries (i) has any material lending or other
relationship with any bank or lending affiliate of any of the Underwriters or any
15
underwriters of
the Concurrent Offering and (ii) does not intend to use any of the proceeds from the sale of the
Shares
hereunder or from the sale of the convertible notes in the Concurrent Offering to repay any
outstanding debt owed to any affiliate of any of the Underwriters or any underwriters of the
Concurrent Offering.
(dd) Voting Agreements. To the best of the Companys knowledge, no agreement is in force or
effect which in any manner affects the voting or control of any of the securities of the Company or
any of the Subsidiaries (other than as reflected in the Schedule 13D filed with the SEC on April
10, 2007 by Strongbow Capital, Ltd., et al, and any and all amendments thereto).
(ee) Other Agreements. To the best of the Companys knowledge, none of the directors or senior
officers of the Company, any known holder of more than 10% of any class of securities of the
Company or any known associate or affiliate of any of the foregoing has any interest, directly or
indirectly, in any transaction contemplated by this Agreement except as otherwise described in the
Preliminary Prospectuses and the Registration Statement.
(ff) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Shares, the offering and sale of the convertible notes in the Concurrent Offering, and
the application of the proceeds thereof as described in the Registration Statement, the Time of
Sale Information and the Prospectuses, will not be required to register as an investment company
or an entity controlled by an investment company within the meaning of the Investment Company
Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively,
Investment Company Act).
(gg) PFIC. The Company expects that it will be a Passive Foreign Investment Company (PFIC)
within the meaning of Section 1297 of the Code, for the taxable year ended December 31, 2007.
(hh) Taxes. The Company and its subsidiaries have paid all federal, state, provincial, local
and foreign taxes and filed all tax returns required to be paid or filed through the date hereof
except in the case where the failure to do so would not, individually or in the aggregate, have a
Material Adverse Effect; and except as otherwise disclosed in the Registration Statement, the Time
of Sale Information and the Prospectuses, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of
their respective properties or assets. No domestic or foreign taxation authority has asserted or
to, to the best of the Companys knowledge, threatened to assert any assessment, claim or liability
for taxes due or to become due in connection with any review or examination of the tax returns of
the Company or any of the Subsidiaries (including, without limitation, any predecessor companies)
filed for any year which would have a Material Adverse Effect.
(ii) Transfer Taxes. There are no transfer taxes or other similar fees or charges under
Canadian or U.S. federal law or the laws of any state, province or any political subdivision
thereof, required to be paid in connection with the execution and delivery of this Agreement or the
issuance by the Company or sale by the Company of the Shares.
(jj) Stamp Tax. No stamp duty, registration or documentary taxes, duties or similar charges
are payable under the federal laws of Canada or the laws of any province in connection
16
with the
creation, issuance, sale and delivery to the Underwriters of the Shares or the authorization,
execution, delivery and performance of this Agreement or the resale of Shares by an Underwriter to
U.S. residents.
(kk) Licenses and Permits. Except as disclosed in the Registration Statement, the Time of
Sale Information and the Prospectuses, the Company and the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, provincial, local or foreign governmental or
regulatory authorities that are necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses as described in the Registration Statement, the Time
of Sale Information and the Prospectuses, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material Adverse Effect; and except as
described in the Registration Statement, the Time of Sale Information and the Prospectuses, neither
the Company nor any of the Subsidiaries has received notice of any revocation or modification of
any such license, certificate, permit or authorization or has any reason to believe that any such
license, certificate, permit or authorization will not be renewed in the ordinary course.
(ll) No Revocation or Modification. Except as disclosed in the Registration Statement, the
Time of Sale Information and the Prospectuses, neither the Company nor any of the Subsidiaries has
received any notice of proceedings relating to the revocation or modification of any material
mining or exploration authorities, permits or licenses previously granted to the Company, nor have
any of them received notice of the revocation or cancellation of, or any intention to revoke or
cancel, any mining claim, groups of claims, exploration rights, concession or lease with respect to
any of the resource properties described in the Registration Statement, the Time of Sale
Information and the Prospectuses where such proceedings, revocations, modifications, or
cancellations, would have a Material Adverse Effect.
(mm) No Labor Disputes. There has not been in the last two years, and no labor disturbance by
or dispute with employees of the Company or any of the Subsidiaries currently exists or, to the
best knowledge of the Company, is contemplated or threatened and the Company is not aware of any
existing or imminent labor disturbance by, or dispute with, the employees of any of its or the
Subsidiaries principal suppliers, contractors or customers, except as would not have a Material
Adverse Effect.
(nn) Compliance With Environmental Laws. Except as disclosed in the Registration Statement,
the Time of Sale Information and the Prospectuses, (i) the Company and its Subsidiaries (A) are in
compliance with any and all applicable federal, state, provincial, local and foreign laws, rules,
regulations, requirements, decisions and orders relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, Environmental Laws); (B) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses; (C) have not received notice of, and do
not otherwise have knowledge of,
any actual or potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants; (D) do not have any
knowledge of and have not received any
17
notice of any material claim, judicial or administrative
proceeding, pending or threatened against, or which may affect, either the Company or any
Subsidiary or any of the property, assets or operations thereof relating to, or alleging any
violation of any Environmental Laws, the Company is not aware of any facts which could give rise to
any such claim or judicial or administrative proceeding and neither the Company nor any Subsidiary
nor any of the property, assets or operations thereof is the subject of any investigation,
evaluation, audit or review by any Governmental Authority (which term means and includes, without
limitation, any national, federal government, province, state, municipality or other political
subdivision of any of the foregoing, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any corporation or other
entity owned or controlled (through stock or capital ownership or otherwise) by any of the
foregoing) to determine whether any violation of any Environmental Laws has occurred or is
occurring or whether any remedial action is needed in connection with a release of any Contaminant
(which term means and includes, without limitation, any pollutants, dangerous substances, liquid
wastes, hazardous wastes, hazardous materials, hazardous substances or contaminants or any other
matter including any of the foregoing, as defined or described as such pursuant to any
Environmental Law) into the environment, except for compliance investigations conducted in the
normal course by any Governmental Authority; (E) do not store any hazardous or toxic waste or
substance on the property thereof and have not disposed of any hazardous or toxic waste, in each
case in a manner contrary to any Environmental Laws, and there are no Contaminants on any of the
premises at which the Company or any Subsidiary carries on business, in each case other than in
compliance with Environmental Laws; (F) to the best of the Companys knowledge, are not subject to
any contingent or other liability relating to the restoration or rehabilitation of land, water or
any other part of the environment (except for those derived from normal exploration activities) or
non-compliance with Environmental Laws; and (ii) there are no costs or liabilities associated with
Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of
(A) and (B) above, for any such failure to comply, or failure to receive required permits, licenses
or approvals, or cost or liability, as would not, individually or in the aggregate, have a Material
Adverse Effect.
(oo) Compliance With ERISA. Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (ERISA), that is maintained,
administered or contributed to by the Company or any of its affiliates for employees or former
employees of the Company and its affiliates has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations (including but not
limited to ERISA and the Internal Revenue Code of 1986, as amended (the Code)); no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred
with respect to any such plan excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, no accumulated funding deficiency as defined in Section
412 of the Code has been incurred, whether or not waived, and the fair market value of the assets
of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such plan determined using reasonable actuarial
assumptions.
18
(pp) Foreign Private Issuer. The Company is a foreign private issuer within the meaning of
Rule 3b-4 under the Exchange Act.
(qq) Use of Proceeds. The Company intends to use the net proceeds from the Concurrent
Offering and from the offering of Shares in the manner specified in the Pricing Prospectuses and
Prospectuses under the caption Use of proceeds;
(rr) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act and the
Canadian Securities Laws) that is designed to ensure that information required to be disclosed by
the Company in reports that it files or submits under the Exchange Act and Canadian Securities Laws
is recorded, processed, summarized and reported within the time periods specified in the
Commissions rules and forms and Canadian Securities Laws, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Companys
management as appropriate to allow timely decisions regarding required disclosure. The Company and
its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act and Multilateral Instrument 52-109 -
Certification of Disclosure in Issuers Annual and Interim Filings (including the forms thereto)
(MI 52-109).
(ss) Accounting Controls. The Company and its subsidiaries maintain systems of internal
control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act and MI 52-109)
that comply with the requirements of the Exchange Act and MI 52-109 and have been designed by, or
under the supervision of, their respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles, including, but not limited to internal accounting
controls sufficient to provide reasonable assurance (i) that transactions are executed in
accordance with managements general or specific authorizations; (ii) that transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii) that access to assets is
permitted only in accordance with managements general or specific authorization; (iv) that the
recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (v) regarding prevention or timely
detection of unauthorized acquisition, use or disposition of the Companys assets that could have a
material effect on the annual financial statements or interim financial statements. Except as
disclosed in the Registration Statement, the Time of Sale Information and the Prospectuses, there
are no material weaknesses in the Companys internal controls.
(tt) Insurance. Except as otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectuses, the Company and its Subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including business interruption
insurance, which insurance is in amounts and insures against such losses and risks as are adequate
to protect the Company and its subsidiaries and their respective businesses; and neither the
Company nor any of its subsidiaries has (i) received notice from any insurer or agent
19
of such
insurer that capital improvements or other expenditures are required or necessary to be made in
order to continue such insurance, (ii) been
refused any insurance coverage sought or applied for or (iii) 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 at reasonable cost from similar insurers as may be necessary to continue
its business.
(uu) Minute Books and Records. The minute books and records of the Company and the
Subsidiaries made available to counsel for the Underwriters in connection with their due diligence
investigations of each of the Company and the Subsidiaries for the periods from October 5, 1998 to
the date of examination thereof are all of the minute books and records of the Company and the
Subsidiaries respectively and contain copies of all material proceedings (or certified copies
thereof) of the shareholders, the boards of directors and all committees of the boards of directors
of the Company and the Subsidiaries to the date of review of such corporate records and minute
books and there have been no other meetings, resolutions or proceedings of the shareholders, board
of directors or any committees of the boards of directors of the Company and any of the
Subsidiaries to the date of review of such corporate records and minute books not reflected in such
minute books and other records, other than those which have been disclosed to the Underwriters or
which are not material in the context of the Company and the Subsidiaries, on a consolidated basis;
(vv) Leased Premises. With respect to each of the premises which is material to the Company
on a consolidated basis and which the Company or any of the Subsidiaries occupies as tenant
(excluding mining concessions) (the Leased Premises), the Company or such Subsidiary occupies the
Leased Premises and has the exclusive right to occupy and use the Leased Premises and each of the
leases pursuant to which the Company and/or the Subsidiaries occupies the Leased Premises is in
good standing and in full force and effect;
(ww) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(xx) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
20
(yy) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or Affiliate of the Company or any
of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (OFAC); and the Company will not
directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities of any person currently subject
to any U.S. sanctions administered by OFAC.
(zz) No Restrictions on Subsidiaries. Except as disclosed in the Registration Statement, the
Time of Sale Information and the Prospectuses, no Subsidiary of the Company is currently
prohibited, directly or indirectly, under any agreement or other instrument to which it is a party
or is subject, from paying any dividends to the Company, from making any other distribution on such
subsidiarys share capital, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiarys properties or assets to the Company
or any other subsidiary of the Company.
(aaa) No Brokers Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finders fee or like payment in connection with the offering and sale of the
Shares or in connection with the Concurrent Offering. Except as provided herein, there is no
person, firm or corporation acting for the Company entitled to any brokerage or finders fee in
connection with this Agreement or any of the transactions contemplated hereunder;
(bbb) No Registration Rights. No person has the right to require the Company or any of its
subsidiaries to register or qualify any securities for sale under the Securities Act or the
Canadian Securities Laws by reason of the filing of the Registration Statement with the Commission
or the Canadian Base PREP Prospectus with the Canadian Authorities or the issuance and sale of the
Shares.
(ccc) No Stabilization. The Company has not taken, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in, under the Exchange Act,
Canadian Securities Laws or otherwise, any stabilization or manipulation of the price of the
Shares.
(ddd) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act or as defined under Canadian
Securities Laws) contained in the Registration Statement, the Time of Sale Information and the
Prospectuses has been made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith or does not reflect the Companys good faith best estimate of the matters
described therein; the assumptions used in the preparation of any projections are reasonable; and
none of the Company or its subsidiaries are aware of any business, economic or industry
developments materially inconsistent with the assumptions underlying such projections except as
disclosed in the Registration Statement, the Time of Sale Information and the Prospectuses.
21
(eee) Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Registration Statement, the Time of Sale Information and the Prospectuses is not based on or
derived from sources that are reliable and accurate in all material respects.
(fff) Loans. Other than as disclosed in the Registration Statement, the Time of Sale
Information and the Prospectuses, the Company has not made any loans to or guaranteed the
obligations of any person other than the Subsidiaries;
(ggg) Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any
of the Companys directors or officers, in their capacities as such, to comply with any applicable
provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith, including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(hhh) Status under the Securities Act. The Company is not an ineligible issuer as defined
under the Securities Act, in each case at the times specified in the Securities Act in connection
with the offering of the Shares.
(iii) Transfer Agent. Computershare Investor Services Inc. has been duly appointed the
transfer agent and registrar for the Common Shares of the Company and Computershare Trust Company,
Inc. is the duly appointed U.S. co-transfer agent of the Company with respect to the Common Shares.
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will cause the Prospectuses, properly completed, and any
supplement thereto to be filed, each in a form approved by the Representatives with the Canadian
Authorities in accordance with the PREP Procedures (in the case of the Canadian Prospectus) and
with the Commission pursuant to General Instruction II.L of Form F-10 (in the case of the U.S.
Prospectus) within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filings; will file any Issuer Free Writing Prospectus to the extent
required by Rule 433 under the Securities Act; and the Company will furnish copies of the
Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next
succeeding the date of this Agreement in such quantities as the Representatives may reasonably
request.
(b) Time of Filings. The Company will prepare and file with the Canadian Authorities,
promptly after the date of this Agreement, and in any event no later than 5:00 p.m. (New York City
time) on the second business day following the date of this Agreement, and in conformity in all
material respects with applicable Canadian Securities Laws, the Canadian Prospectus setting forth
the PREP Information. The Company will prepare and file with the Commission, promptly after the
date of this Agreement, and in any event no later than 5:00 p.m. (New York City time) on the second
business day following the date of this Agreement, the U.S. Prospectus.
22
(c) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives,
three signed copies of the Registration Statement, the Canadian Preliminary Prospectus, the
Canadian Base PREP Prospectus and the Canadian Prospectus as originally filed and each amendment
thereto, in each case including all exhibits and consents filed therewith and documents
incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the
Registration Statement, the Canadian Preliminary Prospectus, the Canadian Base PREP Prospectus and
the Canadian Prospectus as originally filed and each amendment thereto (without exhibits) and (B)
during the Prospectus Delivery Period (as defined below), as many copies of the Prospectuses
(including all amendments and supplements thereto and documents incorporated by reference therein)
and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used
herein, the term Prospectus Delivery Period means such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the Underwriters a prospectus
relating to the Shares is required by law to be delivered (or required to be delivered but for Rule
172 under the Securities Act) in connection with sales of the Shares by any Underwriter or dealer.
(d) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectuses, whether
before or after the time that the Registration Statement becomes effective, the Company will
furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free
Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed
amendment or supplement to which the Representatives reasonably object.
(e) Notice to the Representatives. The Company will advise the Representatives promptly, and
confirm such advice in writing, (i) when the Registration Statement has become effective and when
the Canadian Prospectus shall have been filed with the Canadian Authorities pursuant to the PREP
Procedures; (ii) when any amendment to the Registration Statement or the Canadian Prospectus shall
have been filed or become effective or a MRRS Decision Document in respect of any such amendment
has been issued, as the case may be; (iii) when any supplement to the Prospectuses or any Issuer
Free Writing Prospectus or any amendment to the Prospectuses has been filed; (iv) of any request by
the Commission or the Canadian Authorities for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses, as applicable, or the receipt of any comments from the
Commission or the Canadian Authorities relating to the Registration Statement or the Prospectuses
or any other request by the Commission or the Canadian Authorities for any additional information;
(v) of the issuance by the Canadian Authorities or the Commission of any stop order suspending the
effectiveness of the Canadian Prospectus or the Registration Statement, as applicable, or any
post-effective amendment thereto, or suspending the use of any Prospectuses or any Issuer Free
Writing Prospectus or, in each case, of the initiation or threatening of any proceedings therefore;
(vi) of the occurrence of any event within the Prospectus Delivery Period as a result of which the
Prospectuses, the Time of Sale Information or
any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the
circumstances existing when the Prospectuses, the Time of Sale Information or
23
any such Issuer
Free Writing Prospectus is delivered to a purchaser, not misleading; (vii) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the Shares for offer
and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose
(viii) of the receipt of any comments or communications from the Canadian Authorities, the
Commission or any other regulatory authority relating to the Prospectuses, the Registration
Statement, or the listing of the Shares on the Toronto Stock Exchange or the American Stock
Exchange; and the Company will use its best efforts to prevent the issuance of any such order
suspending the effectiveness of the Registration Statement, preventing or suspending the use of any
Pricing Prospectus or the Prospectuses or suspending any such qualification of the Shares and, if
any such order is issued, will obtain as soon as possible the withdrawal thereof.
(f) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectuses as then amended or
supplemented would include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading
or (ii) it is necessary to amend or supplement the Prospectuses to comply with law, the Company
will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission and the Canadian Authorities and furnish to the Underwriters
and to such dealers as the Representatives may designate, such amendments or supplements to the
Prospectuses as may be necessary so that the statements in the Prospectuses as so amended or
supplemented will not, in the light of the circumstances existing when the Prospectuses is
delivered to a purchaser, be misleading or so that the Prospectuses will comply with law and (2) if
at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a
result of which the Time of Sale Information as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances, not misleading or (ii) it is necessary
to amend or supplement the Time of Sale Information to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c)
above, file with the Commission (to the extent required) and furnish to the Underwriters and to
such dealers as the Representatives may designate, such amendments or supplements to the Time of
Sale Information as may be necessary so that the statements in the Time of Sale Information as so
amended or supplemented will not, in the light of the circumstances, be misleading or so that the
Time of Sale Information will comply with law.
(g) Other Jurisdictions. The Company will qualify the Shares for offer and sale under the
securities or Blue Sky laws of such states and other jurisdictions as the Representatives shall
reasonably request and will continue such qualifications in effect so long as required for
distribution of the Shares; provided that the Company shall not be required to (i) qualify
as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction
where it would not otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it
is not otherwise so subject.
24
(h) Earning Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the effective date (as defined in Rule 158) of the Registration Statement.
(i) Clear Market. For a period of 90 days after the Closing Date, the Company will not (i)
offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any Common Shares or any
securities convertible into or exercisable or exchangeable for Common Shares or (ii) enter into any
swap or other agreement that transfers, in whole or in part, any of the economic consequences of
ownership of the Common Shares, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Shares or such other securities, in cash or otherwise,
without the prior written consent of the Representatives, other than the Shares to be sold
hereunder, the public offering of convertible notes as set forth in the Pricing Prospectuses and
the Prospectuses under the heading Concurrent offering, any Common Shares of the Company issued
upon the exercise of equity units, warrants and options granted under the existing equity
incentive plan and as contemplated by the management information circular, dated April 20, 2007, as
it relates to the Companys KSOP Plan, and any options or other securities granted pursuant to the
Companys equity incentive plan and KSOP Plan.
(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Shares as
described in the Registration Statement, the Time of Sale Information and the Prospectuses under
the heading Use of proceeds.
(k) No Stabilization. During the Prospectus Delivery Period, the Company will not take,
directly or indirectly, under the Exchange Act, Canadian Securities Laws or otherwise, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Shares.
(l) Exchange Listing. The Company will use its best efforts to effect and maintain the
listing of the Shares on (i) the Toronto Stock Exchange, for not less than one year, and (ii) the
American Stock Exchange.
(m) Reports. So long as the Shares are outstanding, the Company will furnish to the
Representatives, as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of Common Shares, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities exchange or
automatic quotation system.
(n) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
25
(o) PFIC. For each taxable year in which the Company is a passive foreign investment
company as defined in Section 1297 of the Code, the Company will provide holders of Common Shares
that are U.S. taxpayers with the required information to enable such holders to make a qualified
electing fund election under Section 1295 of the Code and the Treasury Regulations promulgated
thereunder, and will satisfy all requirements described therein (which, for the avoidance of doubt,
shall include providing a PFIC Annual Information Statement.
(p) Reporting Issuer. Subject to the Companys board of directors exercise of its fiduciary
duty to consider a transaction that might result in the Company ceasing to be a public company, the
Company covenants and agrees with the Underwriters that the Company will use its reasonable best
efforts (i) to maintain its status as a reporting issuer (or the equivalent thereof) not in
default of the requirements of the Canadian Securities Laws of each of the Canadian Jurisdictions
for a period of one year following the Closing Date and (ii) for a period of one year following the
Closing Date file all documents required to be filed by the Company with the Commission pursuant to
the Exchange Act within the time periods required by the Exchange Act and the rules and regulations
of the Commission thereunder.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, prepare or participate in the
planning for use of, any free writing prospectus, as defined in Rule 405 under the Securities Act
(which term includes, but is not limited to, any use of any written information furnished to the
Commission by the Company and not incorporated by reference into the Registration Statement and any
press release issued by the Company) or any Issuer Free Writing Prospectus other than (i) a free
writing prospectus that contains no issuer information (as defined in Rule 433(h)(2) under the
Securities Act) that was not included (including through incorporation by reference) in the U.S.
Pricing Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free
Writing Prospectus listed on Annex B or prepared pursuant to Section 3(d) or Section 4(d) above, or
(iii) any free writing prospectus prepared by such Underwriter and approved by the Company in
advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an
Underwriter Free Writing Prospectus).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred to in
clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Shares unless such terms have previously
been included in a free writing prospectus filed with the Commission; provided that Underwriters
may use a term sheet substantially in the form of Annex C hereto without the consent of the
Company; provided further that any Underwriter using such term sheet shall notify the Company, and
provide a copy of such term sheet to the Company, prior to, or substantially concurrently with, the
first use of such term sheet.
26
(d) It will, pursuant to reasonable procedures developed in good faith, retain copies of each
free writing prospectus used or referred to by it, in accordance with Rule 433 under the Securities
Act.
(e) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be as provided herein is subject to the performance by the Company of its
covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. The Canadian Prospectus shall have been timely
filed with the Canadian Authorities and a MRRS Decision Document shall have been obtained in
respect thereof and the Registration Statement shall have become effective; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose
or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the
Commission; the U.S. Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereto; no order having the effect of ceasing or suspending the distribution of the
Shares or the trading in the securities of the Company or any other securities of the Company shall
have been issued or proceedings therefore initiated or threatened by any securities commission,
securities regulatory authority or stock exchange in Canada or the United States; and all requests
by the Commission and the Canadian Authorities for additional information shall have been complied
with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date or
the Additional Closing Date, as the case may be; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and correct on and as
of the Closing Date or the Additional Closing Date, as the case may be.
(c) No Material Adverse Change. No event or condition of a type described in Section 3(k)
hereof shall have occurred or shall exist, which event or condition is not described in the
Registration Statement, Time of Sale Information (excluding any amendment or supplement thereto)
and the Prospectuses (excluding any amendment or supplement thereto) and the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and
the Prospectuses.
27
(d) Officers Certificate. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representatives (i) confirming that such officers have
carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectuses
and, to the best knowledge of such officers, the representations set forth in Sections 3(a), 3(c)
and 3(e) hereof are true and correct, (ii) confirming that the other representations and warranties
of the Company in this Agreement are true and correct and that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(e) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, PricewaterhouseCoopers LLP shall have furnished to the
Representatives, at the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily included in
accountants comfort letters to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectuses; provided, that the letter delivered on the Closing
Date or the Additional Closing Date, as the case may be, shall use a cut-off date no more than
two business days prior to such Closing Date or such Additional Closing Date, as the case may be.
(f) Agent for Service. Prior to the Closing Date, the Company shall have furnished to the
Representatives satisfactory evidence of its due and valid authorization of CT Corporation System
as its agent to receive service of process in the United States pursuant to Section 13 hereof, and
satisfactory evidence from CT Corporation System accepting its appointment as such agent.
(g) Opinion of Yukon Counsel for the Company. Yukon counsel to the Company shall have
furnished to the Representatives, at the request of the Company, their written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, with respect to the Company,
to the effect set forth in Annex A-1 hereto.
(h) Opinion of Canadian Counsel for the Company. Fasken Martineau DuMoulin LLP, Canadian
counsel for the Company, shall have furnished to the Representatives, at the request of the
Company, their written opinion, dated the Closing Date or the Additional Closing Date, as the case
may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex A-2 hereto.
(i) Opinion of U.S. Counsel for the Company. Baker & McKenzie LLP, U.S. counsel for the
Company, together with Baker & McKenzie SC, Caracas, Venezuela, shall have furnished to the
Representatives, at the request of the Company, their written opinions, dated the Closing Date or
the Additional Closing Date, as the case may be, and addressed to the
28
Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set forth in Annex A-3
hereto.
(j) Opinion of Barbados Counsel for the Company. Barbados counsel to the Company shall have
furnished to the Representatives, at the request of the Company, their written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, with respect to Gold Reserve
de (Barbados) Limited.
(k) Opinion of Montana Counsel for the Company. Montana counsel to the Company shall have
furnished to the Representatives, at the request of the Company, their written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, with respect to Gold Reserve
Corporation.
(l) Opinion of Venezuelan Counsel for the Company. Baker & McKenzie, Caracas, Venezuelan
counsel to the Company shall have furnished to the Representatives, at the request of the Company,
their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be,
and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, with respect to Gold Reserve de Venezuela, C.A. and Compania Aurifera Brisas del
Cuyuni, S.A. and with respect to title to the mineral concessions in Bolivar State, Venezuela,
known as the Brisas Property.
(m) Opinion of Canadian Counsel for the Underwriters. The Representatives shall have received
on and as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of
Heenan Blaikie LLP, Canadian counsel for the Underwriters, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such matters.
(n) Opinion of U.S. Counsel for the Underwriters. The Representatives shall have received on
and as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, U.S. counsel for the Underwriters, with respect to such
matters as the Representatives may reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable them to pass upon such matters.
(o) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state, provincial or
foreign governmental or regulatory authority that would, as of the Closing Date or the Additional
Closing Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or
order of any federal, state, provincial or foreign court shall have been issued that would, as of
the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale
of the Shares.
(p) Good Standing. The Representatives shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good
29
standing of the
Company and the Subsidiaries in their respective jurisdictions of organization and their good
standing as foreign entities in such other jurisdictions as the Representatives may reasonably
request, in each case in writing or any standard form of telecommunication from the appropriate
Governmental Authorities of such jurisdictions to the extent available in each jurisdiction.
(q) Exchange Listing. The Shares to be delivered on the Closing Date or Additional Closing
Date, as the case may be, shall have been listed and admitted and authorized for trading on the
American Stock Exchange and shall have been conditionally approved for listing on the Toronto Stock
Exchange, and satisfactory evidence of such actions shall have been provided to the
Representatives.
(r) Lock-up Agreements. The lock-up agreements, each substantially in the form of Exhibit A
hereto, between you and the officers and directors of the Company relating to sales and certain
other dispositions of Common Shares or certain other securities, delivered to you on or before the
date hereof, shall be full force and effect on the Closing Date or Additional Closing Date, as the
case may be.
(s) NASD. The National Association of Securities Dealers, Inc. shall have confirmed that it
has not raised any objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(t) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company shall have furnished to the Representatives such further certificates
and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, not misleading, (ii) or any untrue statement or
alleged untrue statement of a material fact contained in the Prospectuses (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information (including
any Time of Sale Information that has subsequently been amended), or caused by any omission or
alleged omission to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, in
30
each case
except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the Company in writing by
or on behalf of such Underwriter through the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by or on behalf of such Underwriter through the Representatives expressly
for use in the Registration Statement, the Prospectuses (or any amendment or supplement thereto),
any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed
upon that the only such information furnished by any Underwriter consists of the following
information in the Prospectuses furnished on behalf of each
Underwriter: the list of Underwriters and their respective
participation in the sale of the Underwritten Shares under the
caption "Underwriting", the concession and
reallowance figures appearing in the fifth paragraph under the caption Underwriting and the
information contained in the tenth paragraph under the caption Underwriting.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the Indemnified Person) shall promptly notify the person against whom such
indemnification may be sought (the Indemnifying Person) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section 7 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 7. If any
such proceeding shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person
(who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying
Person) to represent the Indemnified Person in such proceeding and shall pay the fees and expenses
of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary or (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person. It is understood and agreed that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and
that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such
31
separate firm for any Underwriter, its affiliates, directors and officers and any control persons
of such Underwriter shall be designated in writing by J.P. Morgan Securities Inc. (JPMorgan) and
any such separate firm for the Company, its directors, its officers who signed the Registration
Statement and any control persons of the Company shall be designated in writing by the Company.
The Indemnifying Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30 days after receipt
by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from
all liability on claims that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other, from the offering of the Shares or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one
hand, and the Underwriters, on the other, shall be deemed to be in the same respective proportions
as the net proceeds (before deducting expenses) received by the Company from the sale of the Shares
and the total underwriting discounts and commissions received by the Underwriters in connection
therewith, in each case as set forth in the table on the cover of the Prospectuses, bear to the
aggregate offering price of the Shares. The relative fault of the Company, on the one hand, and
the Underwriters, on the other, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by the Underwriters and the
parties relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
32
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Shares exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to
contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date or, in the case of the Option Shares, prior to the Additional Closing
Date (i) trading generally shall have been suspended or materially limited on or by any of the New
York Stock Exchange, the American Stock Exchange, the Toronto Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade; (ii) trading of any securities issued or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been
declared by federal (U.S. or Canada) or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States or Canada, that, in the judgment of
the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Shares on the Closing Date or the Additional Closing
Date, as the case may be, on the terms and in the manner contemplated by this Agreement, the Time
of Sale Information and the Prospectuses.
10. Defaulting Underwriter. (a) If, on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to purchase the Shares that it
has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Shares by other persons satisfactory to the Company
33
on
the terms contained in this Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Shares, then
the Company shall be entitled to a further period of 36 hours within which to procure other persons
satisfactory to the non-defaulting Underwriters to purchase such Shares on such terms. If other
persons become obligated or agree to purchase the Shares of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date or the Additional Closing
Date, as the case may be, for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectuses or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to the Registration Statement and
the Prospectuses that effects any such changes. As used in this Agreement, the term Underwriter
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Shares that a defaulting
Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be does not exceed one-tenth of the aggregate number
of Shares to be purchased on such date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares that such Underwriter agreed to
purchase hereunder on such date plus such Underwriters pro rata share (based on the number of
Shares that such Underwriter agreed to purchase on such date) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in
paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, exceeds one-tenth of the aggregate amount of
Shares to be purchased on such date, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement or, with respect to any Additional Closing Date, the
obligation of the Underwriters to purchase Shares on the Additional Closing Date, as the case may
be, shall terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without
liability on the part of the Company, except that the Company will continue to be liable for the
payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7
hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
34
of the Shares and any taxes payable in that connection; (ii) the costs incident to the preparation,
printing and filing under the Securities Act or Canadian Securities Laws, as applicable, of the
Registration Statement, the Preliminary Prospectuses, any Issuer Free Writing Prospectus, the
Pricing Prospectuses, any other Time of Sale Information and the Prospectuses (including all
exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of
reproducing and distributing this Agreement; (iv) the fees and expenses of the Companys counsel
and independent accountants; (v) the fees and expenses incurred in connection with the registration
or qualification and determination of eligibility for investment of the Shares under the laws of
such jurisdictions as the Representatives may designate and the preparation, printing and
distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the
Underwriters); (vi) the cost of preparing share certificates; (vii) the costs and charges of any
transfer agent and any registrar; (viii) all expenses and application fees incurred in connection
with any filing with, and clearance of the offering by, the National Association of Securities
Dealers, Inc.; (ix) all expenses incurred by the Company in connection with any road show
presentation to potential investors; and (x) all expenses and application fees related to the
listing of the Shares on the American Stock Exchange and the Toronto Stock Exchange.
(b) If (i) this Agreement is terminated pursuant to Section 9(ii), (ii) the Company for any
reason fails to tender the Shares for delivery to the Underwriters or (iii) the Underwriters
decline to purchase the Shares for any reason permitted under this Agreement (other than pursuant
to Section 9(i), (iii) or (iv)), the Company agrees to reimburse the Underwriters for all
reasonable out-of-pocket costs and expenses (including the fees and expenses of their counsel)
incurred by the Underwriters in connection with this Agreement and the offering contemplated
hereby. Except as provided above, the Underwriters will pay their own fees and expenses in
connection with this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
13. Agent for Service; Submission to Jurisdiction; Waiver of Immunities. By the
execution and delivery of this Agreement, the Company (i) acknowledges that it has, by separate
written instrument, irrevocably designated and appointed CT Corporation System (or any successor)
(together with any successor, the Agent for Service), as its authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to this Agreement or the Shares,
that may be instituted in any federal or state court in the State of New York, or brought under
federal or state securities laws, and acknowledges that the Agent for Service has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such suit or proceeding, and
(iii) agrees that service of process upon the Agent for Service (or any successor) and written
notice of said service to the Company (mailed or delivered to its Chief Financial Officer at its
principal office in Spokane, Washington), shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The
35
Company further agrees to take any
and all action, including the execution and filing of any and all such documents and instruments,
as may be necessary to continue such designation and appointment of the Agent for Service in full
force and effect so long as any of the Shares shall be outstanding.
14. Judgment Currency. In respect of any judgment or order given or made for any
amount due hereunder that is expressed and paid in a currency (the Judgment Currency) other than
United States dollars, the Company will indemnify each Underwriter against any loss incurred by
such Underwriter as a result of any variation as between (i) the rate of exchange at which the
United States dollar amount is converted into the judgment currency for the purpose of such
judgment or order and (ii) the rate of exchange at which an Underwriter is able to purchase United
States dollars with the amount of judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as aforesaid. The
term rate of exchange shall include any premiums and costs of exchange payable in connection with
the purchase of or conversion into United States dollars.
15. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any investigation made
by or on behalf of the Company or the Underwriters.
16. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities
Act; (b) the term business day means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term subsidiary has the meaning set forth in
Rule 405 under the Securities Act.
17. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any
such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o J.P.
Morgan Securities Inc., 277 Park Avenue, New York, New York 10172 (fax: (212) 622-8358); Attention:
Equity Syndicate Desk. Notices to the Company shall be given to it at 926 West Sprague Avenue,
Suite 200, Spokane, Washington 99201, U.S.A. (fax: (509) 623-1634); Attention: Douglas Belanger,
President.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
36
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
37
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
|
|
|
|
|
|
Very truly yours,
GOLD RESERVE INC.
|
|
|
By: |
|
|
|
|
Title: |
|
|
|
|
|
|
Accepted: May , 2007
J.P. MORGAN SECURITIES INC.
RBC DOMINION SECURITIES INC.
By: J.P. Morgan Securities Inc.
|
|
|
|
|
By: |
|
|
|
|
|
|
Name:
|
|
|
|
|
Title: |
|
|
|
|
|
|
|
By:
|
|
RBC Dominion Securities Inc. |
|
|
|
|
|
|
|
By: |
|
|
|
|
|
|
Name:
|
|
|
|
|
Title: |
|
|
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
38
Schedule 1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Shares
|
|
|
J.P. Morgan Securities Inc. |
|
|
|
|
|
|
|
|
RBC Dominion Securities Inc. |
|
|
|
|
|
|
|
|
Cormark Securities Inc. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
39
Schedule 2
SUBSIDIARIES OF THE COMPANY
|
|
|
|
|
|
|
Subsidiary |
|
Jurisdiction |
|
|
Ownership |
Gold Reserve Corporation
|
|
Montana
|
|
|
100 |
% |
|
|
|
|
|
|
|
Gold Reserve de Venezuela, C.A.
|
|
Venezuela
|
|
|
100 |
% |
|
|
|
|
|
|
|
Gold Reserve de (Barbados) Limited
|
|
Barbados
|
|
|
100 |
% |
|
|
|
|
|
|
|
Compania Aurifera Brisas del Cuyuni, S.A.
|
|
Venezuela
|
|
|
100 |
% |
40
Annex A-1
[Form of Opinion of Yukon Counsel for the Company]
41
Annex A-2
[Form of Opinion of Canadian Counsel for the Company]
42
Annex A-3
[Form of Opinion of U.S. Counsel for the Company]
43
Annex B
a. Time of Sale Information
Electronic road show, released by Bloomberg on May , 2007.
b. Pricing Information Provided Orally by Underwriters
[insert]
44
Annex C
Pricing Term Sheet
[NOT APPLICABLE]
45
Exhibit A
FORM OF LOCK-UP AGREEMENT
May , 2007
J.P. MORGAN SECURITIES INC.
RBC DOMINION SECURITIES INC.
As representatives of
the several underwriters listed in
Schedule I to the Underwriting
Agreements referred to below
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, NY 10172
|
|
|
|
|
|
|
Re:
|
|
Gold Reserve Inc. - Public Offering |
Ladies and Gentlemen:
The undersigned understands that you, as representatives of the several Underwriters (as
defined below), propose to enter into one or more underwriting agreements (together, the
Underwriting Agreements) with Gold Reserve Inc., a company incorporated under the laws of the
Yukon Territory (the Company), providing for the public offering (the Public Offering) by the
several Underwriters named in Schedule I to the Underwriting Agreements (the Underwriters), of
Class A common shares, no par value (the Common Shares), and convertible notes of the Company
(together, the Securities). Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Underwriting Agreements.
In consideration of the Underwriters agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of J.P. Morgan
Securities Inc., on behalf of the Underwriters, the undersigned will not, during the period ending
90 days after the Closing Date, (1) offer, pledge, announce the intention to sell, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any Common Shares of the Company or any securities convertible into or exercisable or
exchangeable for Common Shares (including without limitation, Common Shares which are deemed to be
beneficially owned by the undersigned in accordance with the rules and regulations of the
Securities and Exchange Commission or the Canadian Securities Laws (and over which the undersigned
has dispositive power) and securities which may be issued upon exercise of a stock option or
warrant), or (2) enter into any swap or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of such Common Shares, whether any
such transaction described in clause (1) or (2) above is to be settled by delivery of Common
46
Shares
or such other securities, in cash or otherwise. Notwithstanding the foregoing, subject to
applicable securities laws and the restrictions contained in the Companys charter documents, the
undersigned may transfer the Securities as follows: (i) as a bona fide gift or gifts, provided that
the donee or donees thereof agree to be bound in writing by the restrictions set forth herein; (ii)
to any trust for the direct or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound in writing by the
restrictions set forth herein; (iii) any transfer arising as a result of the undersigned serving as
a trustee of the Companys KSOP, if applicable; (iv) as collateral for any loan, provided that the
lender agrees in writing to be bound by the restrictions set forth in herein; (v) to an executor or
heir in the event of the death of the undersigned, provided that any such executor and heir agree
to be bound in writing by the restrictions set forth herein; (vi) by way of a sale of up to the
equivalent of an aggregate of no more than 20,000 Common Shares during the 90-day period; and (vii)
by way of a sale in accordance with or pursuant to a Rule 10b5-1 plan under the U.S. Securities
Exchange Act of 1934, as amended, which plan is in effect as of the date hereof. For purposes of
this agreement, immediate family shall mean any relationship by blood, marriage or adoption, not
more remote than first cousin.
In furtherance of the foregoing, the Company and any duly appointed transfer agent for the
registration or transfer of the securities described herein are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreements do not become effective, or
if the Underwriting Agreements (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Securities, the undersigned
shall be released from all obligations under this Letter Agreement. The undersigned understands
that the Underwriters are entering into the Underwriting Agreements and proceeding with the Public
Offering in reliance upon this Letter Agreement.
This Letter Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
|
|
|
|
|
|
Very truly yours,
[NAME OF SHAREHOLDER]
|
|
|
By: |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
Gold Reserve
EXHIBIT 5.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby
consent to the incorporation by reference in this Amendment
No. 1 to the Registration Statement on Form
F-10 of Gold Reserve Inc. of our report dated March 28, 2007
relating to the consolidated financial statements of Gold Reserve Inc. for the year ended December
31, 2006.
/s/
PricewaterhouseCoopers LLP
Chartered Accountants
Vancouver, B.C., Canada
May 14, 2007
Gold Reserve
Exhibit
5.2
|
|
|
Fasken Martineau DuMoulin LLP
Barristers and Solicitors
Patent and Trade-mark Agents
|
|
www.fasken.com |
|
|
|
66 Wellington Street West
Suite 4200, Toronto Dominion Bank Tower
Box 20, Toronto-Dominion Centre
Toronto, Ontario, Canada M5K 1N6
|
|
|
|
|
|
416 366 8381Telephone
416 364 7813 Facsimile |
|
|
May 14, 2007
Gold Reserve Inc.
926 West Sprague Avenue
Spokane, WA 88201
USA
Dear Sirs/Mesdames:
Re: Gold Reserve Inc. (the Issuer)
We hereby consent to the references to our firm name on the cover page and under the headings
Legal matters, Names and interests of experts, Enforcement of civil liabilities and Certain
Canadian income tax considerations, and to the use of our opinions under the heading Certain
Canadian income tax considerations, in each case in the prospectus filed as part of the registration statement on Form F-10 (File No. 333-142655) of
the Issuer in connection with the offering of Class A common shares of the Issuer. In giving this
consent we do not admit that we come within the category of persons whose consent is required by
the U.S. Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder.
Yours truly,
/s/ Fasken Martineau DuMoulin LLP
|
|
|
|
|
|
|
|
|
|
|
Vancouver |
|
Toronto |
|
Montréal |
|
Québec |
|
New York |
|
London |
Gold Reserve
Exhibit 5.3
Heenan Blaikie
|
|
|
May 14, 2007
|
|
Of Counsel
The Right Honourable Pierre Elliott Trudeau, P.C., Q.C. (1984-2000)
The Right Honourable Jean Chrétien, P.C., Q.C.
The Honourable Donald J. Johnston, P.C., Q.C. (1974-1996)
Pierre Marc Johnson, F.S.R.C.
The Honourable John W. Morden
André Bureau, O.C.
Pierre C. Lemoine |
Gold Reserve Inc.
926 West Sprague Avenue
Suite 200
Spokane, Washington 99201
U.S.A.
Dear Sirs/Mesdames:
Re: |
|
Gold Reserve Inc. Registration Statement on Form F-10 Class A Common Shares |
We hereby consent to the reference to our firms name under the headings Income tax considerations
Certain Canadian income tax considerations, Legal matters and Names and interests of
experts in the prospectus filed as part of the registration statement on Form F-10 relating to the
offering of Class A common shares of Gold Reserve Inc. In giving this consent we do not thereby
admit that we come within the category of persons whose consent is required by the Securities Act
of 1933, as amended or the rules and regulations promulgated thereunder.
Yours very truly,
/s/ Heenan Blaikie LLP
T 416 360.6336
F 416 360.8425
P.O. Box 185, Suite 2600
200 Bay Street
South Tower, Royal Bank Plaza
Toronto, Ontario
Canada M5J 2J4
www.heenanblaikie.com
Heenan Blaikie llp Lawyers ½ Patent and Trade-mark Agents
Toronto Montreal Vancouver Calgary
Ottawa Quebec Sherbrooke Trois-Rivières Kelowna
Gold Reserve
Exhibit 5.4
[PINCOCK,
ALLEN & HOLT LETTERHEAD]
CERTIFICATE AND CONSENT
|
|
|
TO:
|
|
Ontario Securities Commission
British Columbia Securities Commission
Alberta Securities Commission
Saskatchewan Financial Services Commission, Securities Division
Manitoba Securities Commission
New Brunswick Securities Commission
Nova Scotia Securities Commission
Registrar of Securities, Prince Edward Island
Securities Commission of Newfoundland and Labrador
(collectively referred to as the Commissions) |
|
|
|
AND TO:
|
|
U.S. Securities and Exchange Commission |
|
|
|
AND TO:
|
|
Gold Reserve Inc. (the Company) |
AND TO:
|
|
Fasken Martineau DuMoulin LLP |
|
|
|
RE:
|
|
Short Form Prospectus of the Company, dated May 14, 2007 (the
Prospectus), and the Registration Statement (as defined below) |
We have previously consented to the filing of the technical report entitled NI 43-101 Technical
Report, Brisas Project, Venezuela, Feasibility Update dated October 30, 2006 which refers to the
Supplement to the January 2005 Brisas Project Feasibility Study (collectively, the Technical
Report) prepared for the Company, with the Commissions.
We further certify that we have read the disclosure derived from the Technical Report in the
Prospectus and the Registration Statement, together with the documents incorporated by reference
therein (collectively, the Documents), and we do not have any reason to believe that there are
any misrepresentations in the information derived from the Technical Report that is contained in
the Documents or that the disclosure in the Documents contains any misrepresentation of the
information contained in the Technical Report.
We further certify that we have read the disclosure regarding the property evaluation and resource
and reserve estimates as at October 2006 (the Brisas Mineral Estimates) and we do not have any
reason to believe that there are any misrepresentations in the information regarding the Brisas
Mineral Estimates that is contained in the Documents or that the disclosure in the Documents
contains any misrepresentation of the information contained in the Brisas Mineral Estimates.
We consent to the filing of this updated Certificate and Consent in respect of the Technical Report
with the Commissions and to the disclosure of the Technical Report, as well as any extracts from
and summary of the Technical Report, in the Documents.
We further consent to the use of our name and references to the Technical Report, or portions
thereof, in the Registration Statement on Form F-10 filed by the Company with the U.S. Securities and Exchange Commission, as such may thereafter be amended or supplemented, and in the
prospectus (including preliminary and final) contained therein (the Registration Statement), and
to the inclusion and incorporation by reference of the summary portion of the Technical Report and
of information derived from the Technical Report in the Registration Statement.
Dated this 14 day of May, 2007.
|
|
|
|
|
|
PINCOCK, ALLEN & HOLT
|
|
|
Per: |
/s/ Richard J. Lambert |
|
|
Name: |
Richard J. Lambert, P.E. |
|
|
|
Title: |
Vice President, Mine Engineering
& Geological Services |
|
|
Gold Reserve
Exhibit 5.8
[AKER KVAERNER METALS, INC. LETTERHEAD]
|
|
|
TO:
|
|
Ontario Securities Commission
British Columbia Securities Commission
Alberta Securities Commission
Saskatchewan Financial Services Commission, Securities Division
Manitoba Securities Commission
New Brunswick Securities Commission
Nova Scotia Securities Commission
Registrar of Securities, Prince Edward Island
Securities Commission of Newfoundland and Labrador
(collectively referred to as the Commissions) |
|
|
|
AND TO:
|
|
U.S. Securities and Exchange Commission |
|
|
|
AND TO:
|
|
Gold Reserve Inc. (the Company) |
AND TO:
|
|
Fasken Martineau DuMoulin LLP |
|
|
|
RE:
|
|
Short Form Prospectus of the Company, dated May 14, 2007 (the Prospectus) |
Aker Kvaerner Metals, Inc. (Aker Kvaerner) hereby consents to the use of its name and references
to the January 2005 Feasibility Study (the Report), or portions thereof, in the Prospectus and in
the Registration Statement on Form F-10 filed by the Company, as such may thereafter be amended or
supplemented (the Registration Statement), subject in connection with any such references to the
following qualifications: (a) Aker Kvaerners preparation of the Report did not require Aker
Kvaerner, and Aker Kvaerner did not so undertake, to confirm the accuracy of information and data
supplied by the Company or third parties; (b) Aker Kvaerner did not in the Report attest to or
assume responsibility for (i) the accuracy of information and data supplied by the Company or third
parties or (ii) the accuracy of any recommendations or opinion contained in the Report that are
based in whole or part on information and data supplied by the Company or third parties; and (c)
Aker Kvaerners recommendations and opinions contained in the Report assume that unknown,
unforeseeable, or unavoidable events, which may adversely affect the cost, progress, scheduling or
ultimate success of the Brisas Project, will not occur.
We further certify that we have read the disclosure derived from the Report in the Prospectus and
the Registration Statement, together with the documents incorporated by reference therein
(collectively, the Documents), and we do not have any reason to believe that there are any
misrepresentations in the information derived from the Report that is contained in the Documents or
that the disclosure in the Documents contains any misrepresentation of the information contained in
the Report.
Dated this 14 day of May, 2007.
|
|
|
|
|
|
AKER KVAERNER METALS, INC.
|
|
|
Per: |
/s/ S. Andrew Sass |
|
|
Name: |
S. Andrew Sass |
|
|
|
Title: |
Vice President |
|
|
Gold Reserve
Exhibit 5.9
[SNC LAVALIN LETTERHEAD]
|
|
|
TO:
|
|
Ontario Securities Commission
British Columbia Securities Commission
Alberta Securities Commission
Saskatchewan Financial Services Commission, Securities Division
Manitoba Securities Commission
New Brunswick Securities Commission
Nova Scotia Securities Commission
Registrar of Securities, Prince Edward Island
Securities Commission of Newfoundland and Labrador
(collectively referred to as the Commissions) |
|
|
|
AND TO:
|
|
U.S. Securities and Exchange Commission |
|
|
|
AND TO:
|
|
Gold Reserve Inc. (the Company) |
AND TO:
|
|
Fasken Martineau DuMoulin LLP |
|
|
|
RE:
|
|
Short Form Prospectus of
the Company, dated May 14, 2007 (the
Prospectus) |
SNC Lavalin hereby consents to the use of its name and references to the Project Scope and
Definition Document dated April 2006 (the Report), or portions thereof, in the Prospectus and in
the Registration Statement on Form F-10 filed by the Company, as such may thereafter be amended or
supplemented (the Registration Statement).
We further certify that we have read the disclosure derived from the Report in the Prospectus and
the Registration Statement, together with the documents incorporated by reference therein
(collectively, the Documents), and we do not have any reason to believe that there are any
misrepresentations in the information derived from the Report that is contained in the Documents or
that the disclosure in the Documents contains any misrepresentation of the information contained in
the Report.
Dated
this 14 day of May, 2007.
|
|
|
|
|
|
SNC LAVALIN
|
|
|
Per: |
/s/ Ian Pritchard |
|
|
Name: |
Ian Pritchard |
|
|
Title: |
Vice President & General
Manager, Mining & Metallurgy, Toronto |
|
|
Gold Reserve
Exhibit 5.10
[MARSTON & MARSTON, INC. LETTERHEAD]
|
|
|
TO:
|
|
Ontario Securities Commission
British Columbia Securities Commission
Alberta Securities Commission
Saskatchewan Financial Services Commission, Securities Division
Manitoba Securities Commission
New Brunswick Securities Commission
Nova Scotia Securities Commission
Registrar of Securities, Prince Edward Island
Securities Commission of Newfoundland and Labrador |
|
|
|
AND TO:
|
|
U.S. Securities and Exchange Commission |
|
|
|
AND TO:
|
|
Gold Reserve Inc. (the Company) |
AND TO:
|
|
Fasken Martineau DuMoulin LLP |
|
|
|
RE:
|
|
Short Form Prospectus of the Company, dated May 14, 2007 (the
Prospectus) |
Marston & Marston, Inc. hereby consents to the use of its name and references to the October 2006
Brisas Resource and Reserve Update (the Report), or portions thereof, in the Prospectus and in
the Registration Statement on Form F-10 filed by the Company, as such may thereafter be amended or
supplemented (the Registration Statement).
We further certify that we have read the disclosure derived from the Report in the Prospectus and
the Registration Statement, together with the documents incorporated by reference therein
(collectively, the Documents), and we do not have any reason to believe that there are any
misrepresentations in the information derived from the Report that is contained in the Documents or
that the disclosure in the Documents contains any misrepresentation of the information contained in
the Report.
Dated this 14 day of May, 2007.
|
|
|
|
|
|
MARSTON & MARSTON, INC.
|
|
|
Per: |
/s/ Susan Poos |
|
|
Name: |
Susan Poos |
|
|
|
Title: |
Vice President |
|
|