EXHIBIT 4.10
(KINGSDALE CAPITAL PARTNERS INC. LOGO)
December 15, 2003
WESTERN SILVER CORPORATION
1650 - 1185 West Georgia Street
Vancouver, British Columbia
V6E 4E6
ATTENTION: F. Dale Corman, Chairman and CEO
Thomas Patton, President and COO
Dear Sirs:
AGENCY AGREEMENT
PRIVATE PLACEMENT OF
COMMON SHARES OF
WESTERN SILVER CORPORATION
Kingsdale Capital Partners Inc., Kingsdale Capital Markets Inc. and Orion
Securities Inc. (collectively, the "AGENTS") understand that Western Silver
Corporation (the "COMPANY") proposes to make a private placement of not less
than 2,000,000 common shares ("SECURITIES") of the Company (the "OFFERING" or
the "FINANCING") at a price of $5.15 per Security, structured as set out
herein. It is understood that the Offering is subject to approval by the Toronto
Stock Exchange and the American Stock Exchange (the "EXCHANGES").
The purpose of the Offering is to provide the Company with funds primarily to
pay for the exploration and development of the Company's mineral properties,
with the balance being used for working capital.
The Company hereby appoints the Agents as its exclusive co-lead agents to effect
the sale of the Securities to investors (the "PURCHASERS") on a reasonable
efforts basis in the Qualifying Jurisdictions. The Agents hereby severally agree
to act as the Company's co-lead agents for such purpose and to use reasonable
efforts to effect the sale of the Securities on the Company's behalf in the
respective percentages set forth in section 21 below. It is understood and
agreed that the Agents shall act as agents only and are under no obligation to
purchase or effect the purchase of any of the Securities, although any of the
Agents may do so if it so desires. The Offering shall be made only in Canada,
the United States of America and such other jurisdictions as may be agreed to by
the Company and the Agent (the "QUALIFYING JURISDICTIONS"), pursuant to the
relevant rules of the Exchange, and pursuant to applicable exemptions from the
prospectus and registration requirements of the securities laws of such
Qualifying Jurisdictions. The Agents may form a selling group of such co-agents,
if any, as they may in their sole discretion determine to be necessary or
desirable for the purposes of the Offering.
The terms "material change", "material fact" and "misrepresentation" shall have
the meanings ascribed to them in the Securities Act (Ontario).
The Agents' sale of Securities on the Company's behalf is subject to the terms,
conditions, covenants, representations and warranties listed below.
Scotia Plaza, 40 King Street West, Ste. 3600, Toronto, ON M5H 3Y2
Telephone: (416) 867-4550 Fax: (416) 867-4566
1) As consideration for the Agents' agreement to sell the Securities, the
Company hereby agrees that:
a) The Agents shall be permitted to conduct such due diligence
investigation of the Company, including its business, properties,
material contracts, and reports or other matters, as the Agents deem
necessary or advisable and the results of such due diligence
investigation shall be satisfactory to each Agent, in its sole
discretion, acting reasonably;
b) The Company shall, up to and including Closing (as hereinafter
defined), promptly notify the Agents in writing of any material change
(actual, contemplated or threatened) in the financial condition,
business or affairs of the Company of which it is aware, and of any
change (actual, contemplated or threatened) of any material fact of
which it is aware.
2) It is anticipated that the closing of this Offering will take place on
December 15, 2003, or such other date or dates as may be mutually agreed
upon in writing between the Company and the Agents. Each such closing (a
"CLOSING") shall take place at the offices of Fasken Martineau DuMoulin LLP
in Toronto at such time as the Company and the Agents may agree upon.
3) At each Closing, the Company shall deliver to the Agents against payment of
the purchase price, the following:
a) the requisite certificates representing the Securities, duly
registered in accordance with each Purchaser's instructions;
b) all commissions, fees, warrant certificates and other remuneration, as
the case may be, due to the Agents under this Agreement;
c) a legal opinion from its counsel, dated at Closing, in a form and
content satisfactory to the Agents and their counsel;
d) a certificate from a senior officer of the Company certifying on
behalf of the Company that: (i) the representations and warranties of
the Company contained in this Agreement and in the subscription
agreements given to prospective purchasers (the "Purchasers") under
the Offering (the "Subscription Agreements"), are true and correct as
of the date of Closing; (ii) the Company has duly complied with all
covenants and satisfied all the conditions contained in this agreement
and the Subscription Agreements required to be performed or satisfied
by it up to the time of Closing; (iii) other than the Purchasers no
other person, firm or corporation has any right, conditional or
otherwise, to acquire shares of the Company other than currently
outstanding warrants and incentive stock options; (iv) there is in
existence no unanimous shareholders agreement governing the Company
nor, to the best of such officer's knowledge, any other shareholders
agreement, unanimous or otherwise, that restricts in whole or in part
the powers of the directors to manage the business and affairs of the
Company; (v) no order ceasing or suspending trading in securities of
the Company or prohibiting the sale of the Securities, or the
underlying securities, has been issued and no proceedings for such
purpose are pending or, to such officer's knowledge, after reasonable
inquiry, threatened; (vi) the sale of the Securities by the Company
does not conflict with or result in a breach of or constitute a
default under, whether after notice or lapse of time or both, any of
the terms, conditions or provisions of the constating documents,
by-laws or resolutions of the Company or of any material agreement to
which it is a party; (vii) each of the Company's material contracts
remains in full force and effect, unamended, and, to such officer's
knowledge, after reasonable inquiry, no act, omission or state of
events has occurred that constitutes a breach of or default under any
such material contracts;
e) such other documents as may be reasonably requested by the Agents'
counsel.
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4) By the Company's acceptance of this Agreement, the Company represents and
warrants to and covenants and agrees with the Agents that:
a) it is and will be at Closing a corporation validly incorporated and
subsisting under the laws of British Columbia, it is duly qualified to
carry on its business under the laws of all jurisdictions in which
such business is carried on or is to be carried on, and with the
exception of Western Copper Holdings Inc. (Nevada), which the Company
intends to allow to lapse and which is not a material subsidiary of
the Company, each subsidiary of the Company (a "SUBSIDIARY") has been
validly formed and is subsisting under the laws of its jurisdiction of
formation and is duly qualified to carry on its business under the
laws of all jurisdictions in which such business is carried on or is
to be carried on;
b) the Company and each of its Subsidiaries has all corporate power and
authority to own, lease and operate its properties and conduct its
business;
c) this Agreement has been duly authorized, executed and delivered by the
Company;
d) in respect of subscriptions procured by the Agents and accepted by the
Company, the Company will take all necessary steps to complete the
Offering as contemplated herein including creating, issuing and
selling such number of Securities as will be necessary to satisfy such
subscriptions;
e) it will not use the proceeds of the Offering for any purpose other
than as contemplated by this Agreement;
f) it is and will be at closing a reporting issuer under the securities
laws of the Provinces of Ontario and British Columbia, and is in good
standing and not in default under the securities laws of those
provinces;
g) its common shares are and will at Closing be listed for trading on the
Toronto Stock Exchange under the symbol "WTC" and on the American
Stock Exchange under the symbol "WTZ", such trading has not been
halted or suspended, the Company has not been notified by the Exchange
that it does not meet the requirements to maintain that listing, the
Company is not designated inactive, suspended or the equivalent, and
the Company is in good standing and not in default under the
regulations, rules and policies of the Exchange;
h) as of the date of Closing the Company is a "qualifying issuer" as that
term is defined in s.1.1 of Multilateral Instrument 45-102;
i) the authorized capital of the Company is as disclosed in its public
disclosure record on the System for Electronic Document Analysis and
Retrieval ("SEDAR"), and except as disclosed to the Agents in writing
or herein, no person or company has any agreement or option, or any
right or privilege (whether pre-emptive or contractual) capable of
becoming an agreement (including convertible securities or warrants),
to acquire any unissued shares or other securities of the Company or
any of its Subsidiaries;
j) its public disclosure record on SEDAR sets out all material
information regarding the business, operations and capital of the
Company, is up-to-date, complete and does not contain any
misrepresentations which have not been corrected in such record;
k) there has been no material change (actual, anticipated, contemplated
or threatened, financial or otherwise) except as publicly disclosed
prior to the date of this Agreement, in the business, affairs,
operations, capital, assets or liabilities (contingent or otherwise)
of the Company or its Subsidiaries;
l) no legal or governmental proceedings are pending to which the Company,
or any of its Subsidiaries, is a party or to which its property is
subject that would result individually or
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in the aggregate in any material adverse change in the operation,
business or condition of the Company and, to the knowledge of the
Company, no such proceedings have been threatened against or are
contemplated with respect to the Company or its Subsidiaries or with
respect to their properties;
m) each of the Company and its Subsidiaries:
i) has conducted and is conducting its business in material
compliance with all applicable laws, rules, regulations, tariffs,
orders and directives of each jurisdiction in which its business
is carried on;
ii) to its knowledge, is licensed, registered or qualified in all
jurisdictions in which it owns, leases or operates its property
or carries on business to enable its business to be carried on as
now conducted and its property and assets to be owned, leased and
operated;
iii) possesses all material approvals, consents, certificates,
registrations, authorizations, permits and licenses issued by the
appropriate provincial, state, municipal, federal or other
regulatory agency or body necessary to carry on the business
currently carried on, or contemplated to be carried on, by it, is
in compliance in all material respects with the terms and
conditions of all such approvals, consents, certificates,
authorizations, permits and licenses and with all laws,
regulations, tariffs, rules, orders and directives material to
the operations thereof, and none of the Company or any
Subsidiary;
iv) all such licences, registrations and qualifications are and will
be at the time of Closing valid, subsisting and in good standing,
except in each case in respect of matters which do not and will
not result in any material adverse change to the business,
business prospects or condition (financial or otherwise) of the
Company and its Subsidiaries (on a consolidated basis), and
except for the absence of any such license, registration or
qualification which does not and will not have a material adverse
effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of
the Company and its Subsidiaries (on a consolidated basis) or on
the power or authority of the Company to perform its obligations
under this Agreement, the Subscription Agreements, or the Broker
Warrants, as applicable; and
v) neither the Company nor any of its Subsidiaries has received any
notice of the modification, revocation or cancellation of, or any
intention to modify, revoke or cancel or any proceeding relating
to the modification, revocation or cancellation of any approval,
consent, certificate, authorization, permit or license necessary
to conduct the business now owned or operated by it which, singly
or in the aggregate, if the subject of an unfavourable decision,
order, ruling or finding, would materially adversely affect the
conduct of the business or operations, or the assets, liabilities
(contingent or otherwise), condition (financial or otherwise),
income or prospects of, the Company or any Subsidiary;
n) except as disclosed in the Company's public disclosure record on
SEDAR, the Company and the Subsidiaries:
i) and the property, assets and operations thereof, comply in all
material respects with all applicable "ENVIRONMENTAL LAWS" (which
term means and includes, without limitation, any and all
applicable international, federal, provincial, state, municipal
or local laws, statutes, regulations, treaties, orders,
judgements, decrees, ordinances, official directives and all
authorizations relating to the environment, occupational health
and safety, or any "ENVIRONMENTAL ACTIVITY" (which term means and
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includes, without limitation, any past, present or future
activity, event or circumstance in respect of a "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), including,
without limitation, the storage, use, holding, collection,
purchase, accumulation, assessment, generation, manufacture,
construction, processing, treatment, stabilization, disposition,
handling or transportation thereof, or the release, escape,
leaching, dispersal or migration thereof into the natural
environment, including the movement through or in the air, soil,
surface water or groundwater));
ii) do not have any knowledge of, and have not received any 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
Company 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 into the
environment, except for compliance investigations conducted in
the normal course by any Governmental Authority));
iii) have not given or filed any notice under any federal, state,
provincial or local law with respect to any Environmental
Activity, the Company and the Subsidiaries do not have any
liability (whether contingent or otherwise) in connection with
any Environmental Activity and the Company is not aware of any
notice being given under any federal, state, provincial or local
law or of any liability (whether contingent or otherwise) with
respect to any Environmental Activity relating to or affecting
the Company or any Subsidiary or the property, assets, business
or operations thereof;
iv) 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; and
v) 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 Law;
o) the Company and its Subsidiaries own or have the right to use under
license, sub-license or otherwise all material intellectual property
used by the Company and its Subsidiaries in its business, including
copyrights, industrial designs, trade marks, trade secrets, know how
and proprietary rights is free and clear of any and all encumbrances,
except for
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royalty obligations and general bank security incurred or granted, as
the case may be, in the ordinary course of business;
p) any and all of the agreements and other documents and instruments
pursuant to which the Company or any Subsidiary holds its properties
and assets (including any interest in, or right to earn an interest
in, any property) are valid and subsisting agreements, documents or
instruments in full force and effect, enforceable in accordance with
terms thereof, none of the Company or any Subsidiary is in default of
any of the material provisions of any such agreements, documents or
instruments nor has any such default been alleged;
q) such properties and assets are in good standing under the applicable
statutes and regulations of the jurisdictions in which they are
situated, all leases, licences and claims pursuant to which the
Company or any Subsidiary derive the interests thereof in such
property and assets are in good standing, and there has been no
material default under any such lease, licence or claim and, except as
disclosed in the Disclosure Documents;
r) none of the properties (or any interest in, or right to earn an
interest in, any property) of the Company or any Subsidiary is subject
to any right of first refusal or purchase or acquisition right which
is not disclosed in the Company's public disclosure record on SEDAR;
s) all taxes required to be paid with respect to such properties and
assets to the date hereof have been paid;
t) the Company and each of its Subsidiaries (where applicable) has on a
timely basis filed all necessary federal, provincial, state, local and
foreign tax returns and notices and has paid or made provision for all
applicable taxes of whatever nature to the extent such taxes have
become due or have been alleged to be due and the Company is not aware
of any material tax deficiencies or material interest or penalties
accrued or accruing, or alleged to be accrued or accruing thereon
which have not otherwise been provided for by the Company;
u) to the knowledge of the Company, there is not currently any labour
disruption or conflict which is adversely affecting or could adversely
affect, in a material manner, the carrying on of the Company's or any
Subsidiary's business, considered as a whole;
v) it will cause its duly appointed officers to assist the Agents in the
preparation of marketing materials and related information which
comply with applicable securities laws and be available and commit the
time necessary to meet with prospective Purchasers identified by the
Agents to solicit their purchases;
w) all necessary filings and all necessary steps and proceedings to
notify the required securities regulators of the transactions
contemplated hereby, and all required consents or approvals from them
to complete such transactions have been made or obtained, and other
than those filings required to be made with certain securities
commissions following Closing, which filings will be made
post-Closing; and
x) it will use its best efforts to fulfill, at or prior to Closing, each
of the terms and conditions set out herein.
5) Each Agent covenants and agrees with the Company that all information not
in the public domain provided by the Company to the Agent or to the Agent's
representatives or advisors shall be kept confidential by the Agent, its
representatives and advisors.
6) Each Agent covenants and agrees that in the course of its duties hereunder,
the Agent will not make (and will cause the members of the Selling Group
(as defined in paragraph 8 hereof) not to make) any representations or
warranties in respect of the Company as its agent other than is
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publicly available or as specifically authorized by the Company. Each Agent
confirms that no offer or solicitation for the purchase or sale of the
Securities has been made and covenants and agrees that no offer or
solicitation to purchase or sale of the securities to be issued pursuant to
the Offering will be made by it, directly or indirectly, or by any member
of the Selling Group, to any persons or in such manner as to require
registration either of the Company or such securities or the filing of a
prospectus, registration statement or offering memorandum under, or involve
any breach of, the securities laws (including the regulations, rules and
policies promulgated thereunder) of the Qualifying Jurisdictions or any
other jurisdiction in which the Purchasers may be residing or in which the
Company may be a reporting issuer. Each Agent covenants and agrees (and
will cause the members of the Selling Group) to conduct activities in
connection with the sale of the Securities in compliance with all
applicable laws and to obtain from each Purchaser a completed and executed
Subscription Agreement (including all certifications, undertakings,
questionnaires and other documentation contemplated thereby or as may be
required by applicable securities regulatory authorities or the Exchange)
in a form acceptable to the Company and the Agent relating to the
transactions herein contemplated. The Agent has not and will not (and will
cause the members of the Selling Group to not) (i) provide prospective
purchasers with any document or other material that would constitute an
offering memorandum within the meaning of applicable securities laws, or
(ii) engage in or authorize any form of general solicitation or general
advertising of any kind with or in respect of any of the Securities,
including without limitation, in any newspaper, magazine, printed media of
general and regular paid circulation or any similar medium or broadcast
over radio, television, electronic display or otherwise or conduct any
seminar or meeting concerning the offer or sale of any of the Securities
whose attendees have been invited by any general solicitation or general
advertising.
Each Agent further represents, and will cause the members of the Selling
Group to represent, that it is a corporation incorporated and in good
standing in the jurisdiction in which it was formed, and is licensed and
authorized to sell the Securities and receive commissions related thereto
in the Qualifying Jurisdictions. For greater clarity, where an Agent is not
registered or licensed to sell the Securities in a Qualifying Jurisdiction,
and needs to be so registered and licensed, the Agent shall act only
through one or more members of the Selling Group who are so registered or
licensed.
7) Each Agent shall have the right, to cease soliciting subscriptions for
Securities, to withdraw all subscriptions and cancel any obligation of the
Purchasers notwithstanding that the Company may have accepted some or all
of the subscriptions and to return such subscription payments to the
Purchasers without any interest earned thereon and without deduction, if at
any time prior to a Closing:
a) the Company has not complied with its obligations under paragraph 1
hereof;
b) the Agents or any one of them are not satisfied in good faith with the
results of its due diligence review and investigations of the Company;
c) there is, in the sole reasonable opinion of the Agents or any one of
them, a material change or a change in any material fact or a new
material fact arising with respect to the Company and its business
which would reasonably be expected to have a material adverse effect
on the business, affairs, or profitability of the Company or on the
market price or the value of the securities of the Company;
d) there should develop, occur or come into effect any event of any
nature, state of facts, development, accident, law, governmental or
regulatory decision, or other occurrence of any nature whatsoever,
which in the reasonable opinion of the Agents or any one of them, as
agent, makes it impossible, unprofitable or inadvisable to offer the
Securities or which materially adversely affects or may materially
adversely affect the financial markets or
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the business, affairs or profitability of the Company or the market
price or value of the securities of the Company;
e) the state of the financial markets is such that in the reasonable
opinion of the Agents or any one of them, as agent:
i) the Securities cannot be marketed with a reasonable expectation
of profit;
ii) it would be unprofitable to offer or continue to offer the
Securities for sale; or
iii) the advantage or risks in investing in the Securities have been
materially adversely altered;
f) any order operating to restrict, prevent or cease trading in the
Securities is made pursuant to any of the securities legislation or
any other legislation of the Qualifying Jurisdictions and such order
has not been revoked;
g) there is any material breach or non-performance of the covenants of
the Company contained herein and required to be performed prior to
Closing that has not been rectified or remedied or which the Company
has not commenced to rectify or remedy; or
h) any inquiry or investigation (whether formal or informal) in relation
to the Company or any of its directors, officers or employees in their
capacities as such, as the case may be, is commenced or threatened by
any officer or official of any securities commission or other similar
regulatory authority.
If the obligations of an Agent and the Purchasers are terminated pursuant
to this paragraph 7, the Company's liability to that Agent shall be limited
to the Company's obligations under the expense provisions in paragraph 10
of this Agreement. A notice of termination given by one Agent under this
paragraph 7 shall not be binding upon the other Agents. The right of the
Agents or any of them to terminate their respective obligation under this
Agreement is in addition to such other remedies as they may have in respect
of any default, act or failure to act of the Company in respect of any of
the matters contemplated by this Agreement.
8) The Agents shall have the right to form a selling group (the "SELLING
GROUP") of such registered dealers or brokers as the Agents deem
appropriate in the circumstances. The members of the Selling Group shall be
obliged to abide by the terms of this Agreement. Any commission paid or
securities issued to members of the Selling Group in respect of the
Offering is to be for the Agents' account, and the Agents and the members
of the Selling Group shall divide such payments and securities amongst
themselves as agreed between them.
9) The Company shall provide the Agents with full disclosure of all
correspondence and communication held with any regulatory authority in
connection with the Company from the date hereof until the date of Closing
and the Agents shall have a right to attend and participate in any meetings
or discussions with any such regulatory authority and the Company shall
provide the Agents and their counsel with reasonable notice thereof.
10) Whether or not the sale of the Securities shall be completed, all expenses
of or incidental to the issue and delivery of the Securities contemplated
hereby and/or incidental to all matters in connection with the transaction
set out shall be borne by the Company including, without limitation, all
reasonable expenses of the Agents and the members of the Selling Group
incurred in connection with the issuance and sale of the Securities
contemplated herein, all fees required under applicable securities laws,
the fees and expenses of counsel to the Company, and the reasonable fees
and expenses and disbursements of counsel to the Agents and the members of
the Selling Group. "Out-of-pocket" expenses of the Agents and the members
of the Selling Group (other than the fees, disbursements and taxes payable
to its counsel) in excess of $10,000 must be approved in advance by the
Company, and the Agents and the members of the Selling Group
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shall make available to the Company all invoices for such expenses. The
fees of counsel to the Agents and the Selling Group members shall not
exceed an aggregate of $35,000 exclusive of disbursements and G.S.T. These
expenses shall be paid immediately by the Company upon receiving a notice
thereof together with evidence satisfactory to the Company, acting
reasonably, of such expenses being incurred as the Company shall reasonably
request. If the Offering is not completed, the Company agrees to pay the
Agents and the members of the Selling Group all of their reasonable
expenses and costs referred to herein (including fees and expenses of
counsel), subject to the limits set out herein.
11) All warranties, representations, covenants and agreements contained herein
or contained in any documents submitted pursuant to this Agreement and in
connection with the transaction contemplated shall survive the purchase and
sale of the Securities and shall continue in full force and effect for the
benefit of the Purchasers for the period ending twelve (12) months after
the date of Closing and shall not be limited or prejudiced by any
investigation made by or on behalf of any of the Agents in connection with
the purchase and sale of the Securities or otherwise.
12) The Company hereby agrees to indemnify and save harmless each Agent and its
directors, officers, employees and agents from and against all liabilities,
claims, actions, suits, proceedings, losses (other than loss of profits),
costs, damages and expenses in any way caused by, or arising directly or
indirectly from, or in consequence of:
a) any misrepresentation or alleged misrepresentation (as such term is
defined in the Securities Act (Ontario)) contained herein or made by
the Company in connection with the sale by the Company of Securities
in the Subscription Agreements (which, for greater clarity, shall
include all attachments thereto) delivered to prospective Purchasers,
or any written or verbal representation made to the public by the
Company or on its behalf prior to the Closing;
b) any information or statement (except any information or statement
relating to or supplied by the Agent or any of the Agent's directors,
officers, employees, partners, shareholders or agents) contained in
any certificate of the Company or supplementary material delivered
under this Agreement or pursuant to this Agreement (including but not
limited to Subscription Agreements delivered to prospective
Purchasers) which at the time and in the light of the circumstances
under which it was made contains or is alleged to contain a
misrepresentation;
c) any order made or enquiry, investigation or proceedings commenced or
threatened by any securities commission or other competent authority
based upon any untrue statement or omission or alleged untrue
statement or alleged omission or any misrepresentation or alleged
misrepresentation (except a statement or omission or alleged statement
or omission relating to the Agent) in any certificate of the Company
or the Subscription Agreements delivered to prospective Purchasers or
based upon any failure to comply with Securities Laws (other than any
failure or alleged failure to comply by the Agent), preventing or
restricting the trading in or the sale or distribution of the
Securities in the Qualifying Jurisdictions; or
d) the non-compliance by the Company with any applicable securities laws,
including the Company's non-compliance with any statutory requirement
to make any document available for inspection.
13) If any matter or thing contemplated by this paragraph (any such matter or
thing being referred to as a "CLAIM") is asserted against any person or
company in respect of which indemnification is or might reasonably be
considered to be provided, such person or company entitled to
indemnification under this Agreement (the "INDEMNIFIED PARTY") shall notify
the Company as soon as possible of the nature of such Claim and the Company
shall be entitled (but not required)
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to assume the defence of any suit brought to enforce such Claim; provided,
however, that the defence shall be conducted through legal counsel
acceptable to the Indemnified Party acting reasonably and that no
settlement of any such Claim may be made by the Company or the Indemnified
Party without the prior written consent of the other parties to the action
or proceeding which constitutes the Claim.
14) With respect to any Indemnified Party who is not a party to this Agreement,
the Agent shall obtain and hold the rights and benefits of paragraph 13 in
trust for and on behalf of such Indemnified Party.
15) In any such Claim, the Indemnified Party shall have the right to retain
other counsel to act on his or its behalf and to participate in the defence
thereof, provided that the fees and disbursements of such counsel shall be
paid by the Indemnified Party unless: (i) the Company and the Indemnified
Party shall have mutually agreed to the retention of other counsel; (ii)
the Company fails to assume the defence of such Claim on behalf of the
Indemnified Party within ten days of receiving notice of such Claim; or
(iii) the named parties to any such Claim (including any added third or
impleaded party) include both the Indemnified Party and the Company and the
Indemnified Party shall have been advised by counsel that representation of
the Indemnified Party by counsel for the Company is inappropriate as a
result of potential or actual differing interests of those represented; in
each of which cases the Company shall not have the right to assume the
defence of such Claim on behalf of the Indemnified Party but the Company
shall be liable to pay the reasonable fees and disbursements of counsel to
the Indemnified Party, provided that in no event shall the Company be
required to assume the fees and expenses of more than one counsel for all
Indemnified Parties. This indemnity shall not apply to the extent that a
court of competent jurisdiction in a final judgment which has become
non-appealable shall determine that: (a) the Indemnified Party has been
negligent or dishonest or has acted in bad faith or has committed any
fraudulent act, fraudulent misrepresentation or act of wilful misconduct;
and (b) the losses as to which indemnification is claimed hereunder were
caused by the negligence, dishonesty, bad faith, fraudulent act, fraudulent
misrepresentation or act of wilful misconduct referred to in the preceding
paragraph (a) ("DISENTITLING CONDUCT").
16) In order to provide for a just and equitable contribution in circumstances
in which the indemnity provided herein would otherwise be available in
accordance with its terms but is, for any reason, held to be unavailable to
or unenforceable by an Agent or enforceable otherwise than in accordance
with its terms for reasons other than Disentitling Conduct, the Company and
the Agent shall severally contribute to the aggregate of all claims,
expenses, costs and liabilities and all losses (other than loss of profits)
of a nature contemplated herein in such proportions so that the Agent is
responsible for the portion represented by the percentage that the value of
the consideration payable by the Company to the Agent under this Agreement
bears to the aggregate offering price of the Securities and the Company is
responsible for the balance, whether or not they have been sued together or
sued separately.
17) The rights to contribution provided in paragraph 16 shall be in addition to
and not in derogation of any other right to contribution which the Agent
may have by statute or otherwise at law.
18) If an Agent has reason to believe that a claim for contribution may arise,
the Agent shall give the Company notice of such claim in writing, as soon
as reasonably possible, but failure to notify the Company shall not relieve
the Company of any obligation which it may have to the Agent under
paragraph 16, except where the failure to so notify prevents the Company
from filing a defence to such claim.
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19) For services rendered to the Company the Agents shall receive, on Closing:
(i) a commission equal to six percent (6%) of the gross proceeds of this
Offering (the "COMMISSION") payable in cash or equity securities of the
Company (to be issued at the same price as the price of the Securities
under the Offering) as each Agent may in its sole discretion choose; and
(ii) that number of warrants to acquire common shares of the Company
("BROKER WARRANTS") equal to 10% of the total number of Securities sold
under the Offering. Each Broker Warrant shall entitle its holder to acquire
one common share of the Company at an exercise price per share of $5.78 per
share, or such lower price as the Exchanges may permit, on or before the
expiry of twelve (12) months from the Closing. It is understood that the
Broker Warrants to be issued to the Agents shall be issued solely to
Kingsdale Capital Markets Inc. and Orion Securities Inc. for services
rendered by them. Unless the Agents otherwise agree in writing, no
commission, consulting fee or other amount in consideration for the sale of
any of the securities shall be paid to any person or company other than the
Agents or members of the Selling Group. Any subscribers introduced to the
Company by an Agent, and who have not previously purchased securities of
the Company, shall be proprietary to that Agent for a period of twelve (12)
months from the date hereof, and all commissions payable and Broker
Warrants issuable to that Agent hereunder shall be payable and issuable in
respect of a financing which is concluded during this period by the Company
with such a subscriber.
20) The Company hereby grants to the Agents the right (the "UNDERWRITER'S
OPTION") to purchase from the Company at the Offering Price up to that
number of Securities as is equal to 20% of the aggregate number of Shares
sold pursuant to the Offering in order to cover over-allotments, if any,
which right shall be exercisable not less than 24 hours prior to the
Closing.
21) The Agents' obligations under this Agreement shall be several and not
joint, and the Agents' respective obligations and rights and benefits
hereunder shall be as to the following percentages, unless the Agents agree
otherwise and notify the Company of the same in writing:
Kingsdale Capital Markets Inc. and Kingsdale Capital Markets Inc. - 54.17%
Orion Securities Inc. - 45.83%
22) The Company shall be entitled to and shall act on any notice, request,
direction, consent, waiver, extension and other communication given or
agreement entered into by or on behalf of the Agents by Kingsdale Capital
Markets Inc. or Kingsdale Capital Partners Inc. who shall represent the
Agents and have authority to bind the Agents hereunder. In all cases,
Kingsdale Capital Markets Inc. and Kingsdale Capital Partners Inc. shall
use their best efforts to consult with Orion Securities Inc. prior to
taking any action contemplated herein.
23) During the period from the date hereof until Closing of the Offering, the
Company shall promptly notify the Agent in writing of any material change,
whether actual, anticipated or threatened in the business, affairs,
operations, assets, or liabilities of the Company, of which the Company has
knowledge. The Company shall, to the satisfaction of the Agent's counsel,
promptly comply with all applicable filing and other requirements under
securities legislation and similar laws and regulations in the Qualifying
Jurisdictions as a result of such change and provide the Agent with such
comfort in respect thereof as the Agent may reasonably require.
24) Any notice of other document, approval, waiver, extension or other
communication that is or may be given hereunder shall be in writing and
personally delivered to a responsible officer (or in the Agent's case to a
responsible corporate finance officer) or shall be given by telecopier to:
a) In the case of the Company
WESTERN SILVER CORPORATION
1650 - 1185 West Georgia Street
Vancouver, British Columbia
-11-
V6E 4E6
Tel: (604) 684-9497
Fax: (604) 684-4670
Attention: F. Dale Corman
With a copy to:
WILLIAM J. WORRALL, Q.C. LAW CORPORATION
A member of Lexas Law Group
1550 - 1185 West Georgia Street
Vancouver, British Columbia
V6C 4E5
Tel: (604) 641-2765
Fax: (604) 689-7030
Attention: William J. Worrall
b) In the case of the Agent:
KINGSDALE CAPITAL MARKETS INC. AND KINGSDALE CAPITAL PARTNERS INC.
Suite 3600, Scotia Plaza
40 King Street West
Toronto, Ontario M5H 2Y2
Tel: (416) 867-4550
Fax: (416) 867-4565
Attention: Joseph Duggan or Robert Carbonaro
and to
ORION SECURITIES INC.
181 Bay Street
BCE Place, Suite 3100
P.O. Box 830
Toronto, Ontario M5J 2T3
Tel: (416) 848-3523
Fax: (416) 864-9509
Attention: Douglas Bell
-12-
with a copy to:
Fasken Martineau DuMoulin LLP
66 Wellington Street West, Suite 4200
Toronto, Ontario
M5K 1N6
Tel: (416) 366-8381
Fax: (416) 364-7813
Attention: David Carbonaro or Bozidar Crnatovic
25) This Agreement shall be governed by the laws of British Columbia and the
laws of Canada applicable therein and the parties hereby submit to the
jurisdiction of the Courts of Ontario for any purpose arising out of or in
connection with this Agreement.
26) Time shall, in all respects, be of the essence hereof.
27) All references to dollar amounts are to lawful money of Canada.
28) Any headings contained are for convenience only and shall not affect the
meaning of interpretation hereof.
29) Where the context so requires, words importing the singular number include
the plural and vice versa, and words importing gender shall include the
masculine, feminine and neuter genders.
30) This Agreement constitutes the only agreement between the parties with
respect to the subject matter hereof and shall supersede any and all prior
negotiations and understandings relating to the proposed financing,
including the engagement letter dated November 18, 2003 between the Agent
and the Company. This Agreement may only be amended or modified in any
respect by written instrument signed by both parties.
31) The invalidity or unenforceability of any particular provision of this
Agreement shall not effect or limit the validity or enforceability of the
remaining provisions of this Agreement.
32) The terms and provisions of this Agreement shall be binding upon and enure
to the benefit of the Company, the Agent and the Purchasers and their
respective executors, heirs, successors and permitted assigns; provided
that, except as provided for in the Subscription Agreements, this Agreement
shall not be assignable by any party without the written consent of the
others.
33) Each of the parties hereto shall do or cause to be done all such acts and
things and shall execute or cause to be executed all such documents,
agreements and other instruments as may reasonably be necessary or
desirable for the purpose of carrying out the provisions and intent of this
Agreement.
34) This Agreement is intended to and shall take effect as of the date first
set forth above, notwithstanding its actual date of execution or delivery.
35) This Agreement may be executed in any number of counterparts, which taken
together shall form one and the same agreement and may be delivered by
telecopier or other similar means of electronic reproducible transmission
and if so executed shall be legal, valid and binding on the party so
signing as if originally signed.
If the foregoing is in accordance with the Company's understanding and is agreed
to by the Company, will the Company please confirm its agreement by signing the
enclosed duplicate of this letter and by returning the same to the Agent.
-13-
Yours very truly,
KINGSDALE CAPITAL PARTNERS INC.
Per: /s/ Robert A. Carbonaro
------------------------------------
Authorized Signing Officer
I have authority to bind the corporation.
KINGSDALE CAPITAL MARKETS INC.
Per: /s/ Peter Notidis
------------------------------------
Authorized Signing Officer
I have authority to bind the corporation.
ORION SECURITIES INC.
Per: /s/ Doug Bell
------------------------------------
Authorized Signing Officer
I have authority to bind the corporation.
The foregoing accurately reflects the terms of the transaction that we hereby
agree to enter into and the undersigned agrees to be legally bound hereby.
Accepted this 15th day of December, 2003.
WESTERN SILVER CORPORATION
Per: /s/ F. Dale Corman
------------------------------------
Authorized Signing Officer
I have authority to bind the corporation.
-14-