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EXHIBIT 1.1
12/12/96
URANIUM RESOURCES, INC.
1,400,000 SHARES OF COMMON STOCK MINIMUM
1,700,000 SHARES OF COMMON STOCK MAXIMUM
PLACEMENT AGREEMENT
December ___, 1996
EVEREN SECURITIES, INC.
77 West Wacker Drive
31st Floor
Chicago, Illinois 60601
Dear Sirs:
Uranium Resources, Inc., a Delaware corporation (the "Company"),
proposes to offer and sell (the "Offering") an aggregate minimum 1,400,000 and
up to an aggregate maximum 1,700,000 shares of its common stock, $0.001 par
value (the "Common Stock"), to certain purchasers. The Company hereby engages
EVEREN Securities, Inc. to act as the Company's exclusive placement agent (the
"Placement Agent") in connection with the Offering. The minimum 1,400,000
shares of Common Stock (the "Minimum Shares") and the maximum up to 1,700,000
shares of Common Stock (the "Maximum Shares") are herein collectively referred
to as the "Shares." The Company understands that the Placement Agent is acting
on a "best efforts" basis in connection with the Offering and that the Minimum
Shares will be sold on an "all or none" basis, such that no Shares will be sold
unless all the Minimum Shares are sold. The Shares and the Offering are more
fully described in the Registration Statement and Prospectus referred to below.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Registration Statement and Prospectus.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (No. 333-____),
including a preliminary prospectus, relating to the Shares, which may be
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amended. The registration statement as amended at the time when it becomes
effective, including information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the Act, is
hereinafter referred to as the "Registration Statement." The form of
prospectus first filed by the Company with the Commission pursuant to Rule
424(b) and Rule 430A under the Act is hereinafter referred to as the
"Prospectus." Each preliminary prospectus included in the Registration
Statement prior to the time it becomes effective or filed with the Commission
pursuant to Rule 424(a) under the Act is hereinafter referred to as a
"Preliminary Prospectus." As used herein, "Registration Statement" and
"Prospectus" shall include, in each case, the material incorporated therein by
reference filed pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on or prior to the date of this Agreement, and "amended,"
"amendment" or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to include the filing by the Company of any document
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date hereof.
2. Agreement to Act as Placement Agent: Sale and Delivery of
the Shares; Closing.
(a) (i) On the basis of representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the
Company hereby appoints the Placement Agent its agent and grants the Placement
Agent the exclusive right to offer and sell the Shares, on a best efforts
basis, for the account and risk of the Company. The Placement Agent accepts
such appointment and agrees to use its best efforts as Placement Agent to offer
and sell the number of Shares contemplated by this Agreement at the price
stated in the Prospectus; and (ii) the Company hereby agrees to pay to the
Placement Agent on the Closing Date a fee equal to 7% of the aggregate offering
price (as set forth on the cover page of the Prospectus) of the Shares sold
pursuant to the Offering.
(b) The closing of the Offering is conditioned on the sale of the
Minimum Shares prior to December __, 1996 (the "Termination Date"), and on the
conditions precedent to closing provided for in this Agreement. The Placement
Agent shall not be obligated to and does not intend itself to take (or
purchase) any of the Shares. The Placement Agent shall obtain indications of
interest from potential investors for the amount of the Offering. The Company
shall not request effectiveness of the Registration Statement, and the
Placement Agent shall not accept on behalf of the Company any investor funds,
until indications of interest have been received for at least the Minimum
Shares. The Placement Agent will accept subscriptions from investors on behalf
of the Company unless the investor is a resident of a jurisdiction in which the
Offering is not registered, qualified, or exempt from such registration or
qualification.
(c) Confirmations and definitive prospectuses shall be distributed to
all investors by the Placement Agent at the time of pricing, informing
investors of the closing date, which will be scheduled for three business days
after pricing (the "Closing Date"). No investor funds shall be accepted by the
Placement Agent on behalf of the Company prior to effectiveness of the
Registration Statement.
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(d) On or before the Closing Date, all investor funds shall be wired
directly by the investors into an escrow account established for the benefit of
the investors with Norwest Bank Colorado, N.A. (the "Escrow Agent"). The
Escrow Agent will invest such funds in accordance with Rule 15c2-4 promulgated
under the Exchange Act. On or before the Closing Date, the Escrow Agent shall
advise the Company whether the investors have deposited the requisite funds in
the escrow account. If the requisite funds have been deposited, the Company
shall deposit with the Depository Trust Company the Shares to be credited to
the respective accounts of the investors. Investor funds, together with
interest thereon, if any, shall be collected by the Company through the
facilities of the Escrow Agent on the Closing Date. The Offering shall not
continue after the Closing Date. In the event that investor funds are not
received for the Minimum Shares prior to the Termination Date, all funds
deposited in the escrow account shall promptly be returned.
(e) If investor funds for more than the Maximum Shares are received,
the Placement Agent, in its sole and absolute discretion, may allocate the
Shares among all the investors in such manner as it shall see fit.
(f) The Company shall, concurrently with the execution of this
Agreement, deliver an agreement executed by each of the directors and executive
officers of the Company and each stockholder who is the beneficial owner (as
defined in Rule 13d-3 of the Securities and Exchange Commission promulgated
under the Exchange Act) of 875,000 or more shares of the Company's Common Stock
pursuant to which each such person agrees, not to offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any Common Stock of
the Company or any securities convertible into or exercisable or exchangeable
for such Common Stock or in any other manner transfer all or a portion of the
economic consequences associated with the ownership of any such Common Stock
(except by gift to a donee who agrees to be bound by the terms thereof and
except for the bona fide pledge of such securities to a pledgee who agrees to
be bound by the terms thereof) for a period of 90 days after the date of the
Prospectus without the prior written consent of EVEREN Securities, Inc. In any
event, each Lindner mutual fund owning any shares of the Company's Common Stock
and Ryback Management Corporation shall be treated as such a beneficial owner,
and the Company shall deliver an agreement of those parties as required by the
preceding sentence. Further, the Company shall, concurrently with the
execution of this Agreement, deliver to EVEREN Securities, Inc. a manually
signed waiver of each right which may entitle the holder of the right to
require registration under the Act of shares of Common Stock or any other
security of the Company as part of the Registration Statement. In addition,
concurrently with the execution of this Agreement, the Company shall deliver to
EVEREN Securities, Inc. a manually signed waiver of the anti-dilution
provisions that could be triggered by the Offering in the Note and Warrant
Agreement dated May 25, 1995 among the Company, Lindner Investments (on behalf
of Lindner Bulwark Fund) and Lindner Dividend Fund, Inc. The waivers shall be
in form and substance satisfactory to EVEREN Securities, Inc.
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3. Agreements of the Company. The Company agrees with you:
(a) To use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if the Company elects to
rely upon Rule 430A, to comply with the requirements of Rule 430A.
(b) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) when the Registration Statement has become effective and
when any post-effective amendment to it becomes effective, (ii) of any request
by the Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
receipt of any comments from the Commission or the Blue Sky or other securities
authority of any jurisdiction regarding the Registration Statement, any post-
effective amendment thereto, the Prospectus, or any amendment or supplement
thereto, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, and (v) of the happening of any
event during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time. If the Registration Statement has become
or becomes effective with a form of prospectus omitting certain information
pursuant to Rule 430A under the Act, or filing of the Prospectus is otherwise
required under Rule 424(b) under the Act, the Company will file the Prospectus,
properly completed, pursuant to Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to you of such timely filing.
(c) To furnish to you, without charge, four signed copies of the
Registration Statement as first filed with the Commission and of each amendment
to it, including all exhibits, and to furnish to you such number of conformed
copies of the Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or to
make any amendment or supplement to the Prospectus of which you shall not
previously have been advised or to which you shall reasonably object; and to
prepare and file with the Commission, promptly upon your reasonable request,
any amendment to the Registration Statement or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution of the
Shares by you, and to use its best efforts to cause the same to become promptly
effective.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as in the opinion of your counsel,
a prospectus is required by law to be delivered in connection with sales of, or
dealings in, the Shares, to furnish to you as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as you may
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reasonably request and during such period to comply with all requirements
imposed upon it by the Act, as now existing and as hereafter amended, so far as
necessary to permit the continuance of sales of or dealings in the Shares in
accordance with the provisions hereof and the Prospectus.
(f) If during the period specified in paragraph (e) any event shall
occur as a result of which, in the opinion of your counsel, it becomes
necessary to amend or supplement the Prospectus in order to have no untrue
statement of a material fact therein and to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with any law, forthwith to prepare and file with the Commission at the
Company's expense an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented, will not
be untrue and will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with law, and
to furnish to you such number of copies thereof as you may reasonably request.
(g) During the period specified in paragraph (e), to file all
documents required to be filed with the commission pursuant to Sections 13, 14
or 15 of the Exchange Act within the time periods required by the Exchange Act
and the Exchange Act Regulations.
(h) Prior to any public offering of the Shares, in cooperation with
you and your counsel, to use its best efforts to register or qualify the Shares
for offer and sale by you under the securities or Blue Sky laws of such states
and other jurisdictions as you may request, to continue such qualification in
effect so long as required for distribution of the Shares and to file such
consents to service of process or other documents as may be necessary in order
to effect such registration or qualification.
(i) To make generally available to its security holders as soon as
reasonably practicable an earnings statement covering a period of at least
twelve months after the effective date of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy the
provisions of Section 11(a) of the Act, and to advise you in writing when such
statement has been so made available.
(j) During the period of five years after the date of this Agreement,
(i) to mail as soon as reasonably practicable after the end of each fiscal year
to the record holders of its Common Stock a financial report of the Company and
its subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified
by independent certified public accountants, and (ii) to make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from
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the beginning of such year to the close of such quarterly period, together with
comparable information for the corresponding periods of the preceding year.
(k) During the period of five years after the date of the Agreement,
to furnish to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the security holders of the
Company or filed with the Commission, the National Association of Securities
Dealers, Inc. (the "NASD") or any securities exchange, and such other publicly
available information concerning the Company and its subsidiaries as you may
reasonably request.
(l) Whether or not the transactions contemplated hereunder are
consummated or this Agreement becomes effective or is terminated (whether by
you in accordance with the provisions of Section 9 or otherwise) to pay all
reasonable costs, expenses, fees and taxes incident to (i) the preparation,
printing, filing and distribution under the Act of the Registration Statement
(including financial statements and exhibits), each preliminary prospectus and
all amendments and supplements to any of them prior to or during the period
specified in paragraph (e), (ii) the preparation, printing and delivery of the
Prospectus and all amendments or supplements to it during the period specified
in paragraph (e), (iii) the preparation, printing and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky Memoranda, the
certificates for the Shares and all other agreements, memoranda, correspondence
and other documents printed and delivered in connection with the offering of
the Shares (including in each case any disbursements of your counsel, (iv) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states and other jurisdictions
(including in each case the fees and disbursements of your counsel relating to
such registration or qualification and memoranda relating thereto), (v) filings
and clearance with the NASD in connection with the offering of the Shares, (vi)
the listing of the Shares on the Nasdaq National Market and (vii) furnishing
such copies of the Registration Statement, the Prospectus and all amendments
and supplements thereto as you may request for use in connection with the
offering or sale of the Shares.
(m) To use its best efforts to maintain the inclusion of the Common
Stock on the Nasdaq National Market (or on a national securities exchange) for
a period of five years after the effective date of the Registration Statement.
(n) Prior to the Closing Date, not to issue any press release or
other communication relating to the offering of the Shares or hold any press
conference with respect to the Company, any subsidiary, the financial
conditions, results of operations, business, properties, assets, or liabilities
of any of them, or this offering, without your prior written consent which
shall not be unreasonably withheld.
(o) To apply the proceeds from the sale of the Shares as set forth
under "Use of Proceeds" in the Prospectus.
(p) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date, and to satisfy all conditions precedent to the delivery of
the Shares.
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(q) Not to take, at any time, directly or indirectly, any action
intended or which might reasonably be expected, to cause or result in, or which
will constitute, stabilization of the price of the Shares to facilitate the
sale or resale of the Shares.
(r) From the date of the Agreement through the Closing Date, not to
engage any other party to act as placement agent, underwriter, investment
advisor or in any other capacity in connection with any issuance or sale
whether in a private placement or public offering pursuant to the Act, of any
securities of the Company.
4. Representations and Warranties of the Company. The
Company represents and warrants to you that:
(a) The Company meets the requirements for use of Form S-3 under the
Act and has filed with the Commission the Registration Statement, including the
Prospectus relating to the Shares.
(b) The Registration Statement has become effective under the Act, no
stop order suspending the effectiveness of the Registration Statement is in
effect and, to the best of the Company's knowledge, after due inquiry, no
proceedings for such purpose are pending before or contemplated by the
Commission.
(c) (i) Each part of the Registration Statement, when such part
became effective under the Act, did not contain and each such part, as amended
or supplemented, if applicable, will 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 not misleading, (ii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act and the Exchange
Act and (iii) the Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph (c) do not apply
to statements or omissions in the Registration Statement or the Prospectus
based upon information relating to the Placement Agent furnished to the Company
in writing by you expressly for use therein.
(d) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the requirements of the Act and did 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.
(e) The documents incorporated by reference into the Prospectus, at
the time they were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act and the rules and regulations
thereunder, and, as of the date of this Agreement and the Closing Date, when
read together with the Prospectus and any supplement thereto will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated
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therein or necessary to make the statement therein, in the light of the
circumstances under which they were made, not misleading, and any documents
filed after the date of this Agreement and so incorporated by reference in the
Prospectus will, when they are filed with the Commission, comply in all
material respects with the requirements of the Exchange Act and the rules and
regulations thereunder, and when read together with the Prospectus and any
supplement thereto 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.
(f) The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than URI, Inc., Hydro Resources,
Inc., URI Minerals, Inc., Beltline Resources, Inc. or Hydro Restoration
Corporation. Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the condition (financial
or otherwise), earnings, assets, results of operations, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise (a "Material Adverse Effect"), and no proceeding has been instituted
in any such jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or qualification.
(g) The Company has authorized and outstanding capital stock as set
forth under the heading "Capitalization" in the Prospectus and all of the
issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable, have been
issued in substantial compliance with all federal and state securities laws and
were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities.
(h) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and are owned
by the Company free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(i) Except as disclosed in the Prospectus and the financial
statements of the Company and the related notes thereto included in the
Prospectus, neither the Company nor any of its subsidiaries has outstanding any
options to purchase, registration rights, or any preemptive rights or other
rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible securities or
obligations.
(j) The Shares to be issued and sold by the Company hereunder have
been duly authorized and, when issued and delivered to the Depository Trust
Company for the benefit of
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the purchasers of the Shares against payment therefor as provided in this
Agreement, will be validly issued, fully paid and non-assessable, free and
clear of all liens and restrictions on transfer, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(k) The Company has the requisite corporate power and authority to
enter into, execute and deliver this Agreement and perform its obligations
hereunder. This Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company enforceable in
accordance with its terms, except as enforceability may be limited by general
equitable principles, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at law), bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other laws
affecting creditors' rights generally and except no representation or warranty
is given us to the enforceability of those provisions relating to indemnity or
contribution for liabilities arising under the Act.
(l) The Company 's Common Stock, including the Shares, is eligible
for trading on the Nasdaq National Market.
(m) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or
any other evidence of indebtedness or in any other agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of its subsidiaries or their respective property is bound,
except as disclosed in the Prospectus or except where any such violations or
defaults would not result in a Material Adverse Effect.
(n) Except as disclosed in the Prospectus, (i) each of the Company
and its subsidiaries is in possession of and is operating in compliance with
all authorizations, licenses, permits, consents, approvals, certificates,
orders and other rights (including, without limitation those required by the
Nuclear Regulatory Commission) of or with any court, regulatory, administrative
or other governmental body reasonably necessary or required to conduct its
businesses as now conducted or to own, lease or operate its properties, all of
which are valid and in full force and effect, except where the failure to have
possession thereof or to comply therewith would not have a Material Adverse
Effect, and (ii) the Company and its subsidiaries are in compliance with all
laws, rules, regulations, judgments, decrees, orders and statutes of any court
or jurisdiction to which they are subject, except where noncompliance would not
have a Material Adverse Effect.
(o) No consent, authorization, approval, order, license, certificate,
or permit of or from, or declaration or filing with, any federal, state or
local governmental authority or any court or other tribunal is required by the
Company or any of its subsidiaries for the execution or delivery of, or the
performance of the Company's obligations under, this Agreement (except filings
under the Act, and filings under Blue Sky or securities laws of states or other
jurisdictions or as may be required under the rules of the NASD).
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(p) No consent of any party to any contract, agreement, instrument,
lease, license, arrangement, or understanding to which the Company or any of
its subsidiaries is a party, or to which any of their respective properties or
assets are subject, is required for the execution or delivery of, or the
performance of the Company's obligations under, this Agreement.
(q) Neither the execution and delivery of, nor the performance of the
Company's obligations under, this Agreement, nor the issuance and sale of the
Shares as contemplated hereby, nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the terms hereof, will
violate, result in a breach of, conflict with, nor (with or without the giving
of notice or the passage of time or both) entitle any party to terminate or
call a default under any contract, agreement, instrument, lease, license,
arrangement, or understanding, to which the Company or any of its subsidiaries
is a party, or to which any of their respective properties or assets are
subject, nor violate or result in a breach of any term of the respective
charter or by-laws of the Company or any of its subsidiaries nor violate,
result in a breach of, or conflict with any law, rule, or regulation, or any
order, judgment, or decree binding on the Company or any of its subsidiaries or
to which any of their respective operations, businesses, properties, or assets
are subject, except where such violation, breach or conflict would not,
individually or in the aggregate, have a Material Adverse Effect and would not
impair materially the ability of the Company to perform its obligations
hereunder or thereunder.
(r) Neither the Company nor any of its subsidiaries nor any of its
executive officers, directors, or affiliates (as defined pursuant to the Act),
has taken or will take, directly or indirectly, prior to the termination of
this Agreement, any action designed to stabilize or manipulate the price of the
Common Stock or which has caused or resulted in, or which might in the future
reasonably be expected to cause or result in, stabilization or manipulation of
the price of any security of the Company or any of its subsidiaries to
facilitate the sale or resale of any of the Shares.
(s) There is no legal or governmental proceeding pending, or to the
best of the Company's knowledge threatened, to which the Company or any of its
subsidiaries is a party or to which any of their respective property is subject
which is required to be described in the Registration Statement or the
Prospectus and is not so described or, or of any contract or other document
which is required to be described in the Registration Statement or the
Prospectus or is required to be filed as an exhibit to the Registration
Statement which is not described or filed as required.
(t) The operations of the Company and its subsidiaries, and all of
the real property owned by the Company or any of its subsidiaries (the "Owned
Real Property") or leased by the Company or any of its subsidiaries (the
"Leased Real Property"), comply in all respects with all applicable
environmental, health or safety Legal Requirements(1) and all Legal
Requirements
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(1) For purposes of this Agreement, "Legal Requirements" means applicable
common law and any statute, ordinance, code or other law, rule, regulation,
order, technical or other standard, requirement or procedure enacted, adopted,
promulgated, applied or followed by any Governmental Authority, including
Judgments. "Judgment" means any judgment, writ, order, injunction, award or
decree of any court, judge, justice or magistrate, including any bankruptcy
court or judge, and any order of or by any Governmental Authority.
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administered or imposed by the Nuclear Regulatory Commission, except where a
failure to so comply would not have a Material Adverse Effect; and none of the
Company's operations thereon are subject to any judicial or administrative
proceeding alleging a violation of any such Legal Requirements, except for any
violation which would not have a Material Adverse Effect. Neither the Company
nor any of its subsidiaries are the subject of any "Superfund" evaluation or
investigation or any investigation or proceeding of any Governmental
Authority(2) evaluating whether any remedial action is necessary to respond to
any release of Hazardous Substances(3). Except as disclosed in the Prospectus,
the Company and its subsidiaries have no contingent liability in connection
with any release of any Hazardous Substance into the environment, whether the
release was with respect to the Owned or Leased Real Property by the Company or
by any operations of any predecessor with respect to the Owned or Leased Real
Property; and, except as disclosed in the Prospectus, no such release which
could require remediation has occurred.
(u) Except for permits or licenses for which applications have been
made or will be made for future operations as disclosed in the Prospectus, all
permits, licenses, permissions, and other authorizations relating to the Owned
or Leased Real Property which are necessary under applicable Legal Requirements
with respect to pollution or protection of the environment have been obtained,
including Legal Requirements relating to actual or threatened emissions,
discharges, or releases of pollutants, contaminants, or Hazardous Substances
into ambient air, surface water, ground water or land, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or Hazardous Substances.
The Company and each of its subsidiaries is in compliance in all
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(2) For purposes of this Agreement, "Governmental Authority" means (i) the
United States of America, any state, commonwealth, territory or possession
thereof and any political subdivision or quasi-governmental authority of any of
the same, including but not limited to courts, tribunals, departments,
commissions, boards, bureaus, agencies, counties, municipalities, provinces,
parishes, and other instrumentalities, and (ii) any foreign (as to the United
States of America) sovereign entity, including but not limited to nations,
states, republics, kingdoms and principalities, any state, province,
commonwealth, territory or possession thereof, and any political subdivision,
quasi-governmental authority or instrumentality of any of the same.
(3) For purposes of this Agreement, "Hazardous Substances" means any pollutant,
contaminant, chemical, industrial, toxic, hazardous, or noxious substance or
waste which is regulated by any Governmental Authority, including (i) any
"hazardous waste" as defined by the Resource Conservation and Recovery Act of
1976 (RCRA) (42 U.S.C. '6901 et seq.), as amended, and rules and regulations
promulgated thereunder, (ii) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA) (42 U.S.C. '9601 et seq.), as amended, and rules and regulations
promulgated thereunder, (iii) any substance regulated by the Toxic Substances
Control Act (TSCA) (42 U.S.C. '2601 et seq.), as amended, and rules and
regulations promulgated thereunder, (iv) asbestos, (v) polychlorinated
biphenyls, (vi) any substances regulated under the underground storage tanks
provisions of Subtitle I of RCRA (42 U.S.C. '6991 et seq.), as amended, and
rules and regulations promulgated thereunder, (vii) any "economic poison" as
defined in the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. '
135, et seq.); (viii) any petroleum or petroleum compounds (refined or crude)
flammable substances, explosives, radioactive materials, or any other materials
or pollutants which pose a hazard or potential hazard to the Owned or Leased
Real Property or to persons thereon; (ix) any substance the presence, use,
treatment, storage or disposal of which on the Owned or Leased Real Property is
prohibited by any Legal Requirements, and (x) any other substance which by any
Legal Requirement requires special handling, reporting, or notification of any
Governmental Authority in its collection, storage, use, treatment or disposal.
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respects with all terms and conditions of such permits, and is in compliance in
all respects with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and time-tables contained in
such Legal Requirements or contained in any other environmental, health or
safety Legal Requirements relating to the Owned or Leased Real Property except
where noncompliance would not have a Material Adverse Effect. The Company and
each of its subsidiaries have not received any notice of, nor does the Company
or any of its subsidiaries have any knowledge of circumstances relating to, any
past, present or future events, conditions, circumstances, activities,
practices, incidents, actions or plans, including but not limited to the
presence, use, generation, manufacture, disposal, release or threatened release
of any Hazardous Substances from the Owned or Leased Real Property, which could
interfere with or prevent continued compliance, or which could give rise to any
liability except as disclosed in the Prospectus, based upon or related to the
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, release or threatened release into the
environment, of any pollutant, contaminant, or Hazardous Substances from or
attributable to the Owned or Leased Real Property. The Company and each of its
subsidiaries have provided to EVEREN Securities, Inc. complete and correct
copies of (i) all studies, reports, surveys and other materials in their
possession relating to the presence or alleged presence of Hazardous Substances
at, on or affecting the Owned or Leased Real Property, and (ii) all materials
in the Company's or any of its subsidiaries' possession relating to any claim,
allegation or action by any private party under any environmental, health or
safety Legal Requirement with respect to the Owned or Leased Real Property. To
the best knowledge of the Company and each of its subsidiaries, (i) no
underground storage tanks are currently or have been located on any Owned or
Leased Real Property and (ii) no building or other structure on any Owned or
Leased Real Property contains asbestos.
(v) The Company has no reason to believe that, except as disclosed in
the Prospectus, it will not obtain all permits, licenses, permissions and other
authorizations relating to the properties referenced in the Prospectus as
Vasquez and Alta Mesa in Texas and Churchrock and Crownpoint in New Mexico that
are or will be necessary under applicable Legal Requirements to explore,
develop and produce uranium from such properties, using the in situ leach
mining process.
(w) All of the improvements (including leasehold improvements) and
premises of each parcel of the Owned Real Property and Leased Real Property are
in good condition and repair, ordinary wear excepted, and are suitable for the
purposes for which are currently used or proposed to be used by the Company or
any of its subsidiaries. The current use and occupancy of each parcel of the
Owned Real Property and Leased Real Property and the improvements thereon by
the Company or any of its subsidiaries are in compliance with all applicable
Legal Requirements and private covenants and restrictions and do not constitute
nonconforming uses under any applicable zoning requirement. Each parcel of
Owned Real Property and each parcel of Leased Real Property (i) has access to
and over public streets or highways, or private streets or highways for which
the Company or any of its subsidiaries has a valid right of ingress and egress,
(ii) conforms in its current use to all material zoning requirements without
reliance on a variance issued by a Governmental authority or a classification
of the parcel in question as a
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nonconforming use, and (iii) conforms in its current use to all material
restrictive covenants, if any, or other material encumbrances affecting all or
part of such parcel.
(x) The Company or any of its subsidiaries have good, indefeasible
and marketable title to the Owned Real Property and all of their other tangible
and intangible assets and properties, subject only to liens for taxes not yet
due and payable, except as otherwise described in the Prospectus or where
failure to so have would not result in a Material Adverse Effect. The tangible
and intangible assets and properties owned or leased by the Company or any of
its subsidiaries include all properties, assets, and rights necessary to
conduct the business of the Company and each of its subsidiaries as currently
conducted. All tangible assets and properties owned or leased by the Company
and each of its subsidiaries are in good condition and repair, ordinary wear
excepted.
(y) All leases to which the Company or any of its subsidiaries is a
party are valid and binding obligations and no default has occurred or is
continuing thereunder, except where such invalidity, unenforceability or
default would not result in a Material Adverse Effect; and the Company and its
subsidiaries enjoy peaceful and undisturbed possession under all such leases to
which any of them is a party as lessee with such exceptions as do not
materially interfere with the use made by the Company or such subsidiary.
(z) Arthur Andersen LLP are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(aa) The consolidated financial statements and schedules of the
Company, and the related notes thereto, included in the Registration Statement
and the Prospectus (and any amendment or supplement thereto) present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements, schedules and related notes have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods involved as certified by the
independent accountants named in the preceding paragraph of this section,
except as disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) is, in all material respects,
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(ab) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, and except as described therein: (i)
there has not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition, financial
or otherwise, of the Company and its subsidiaries, taken as a whole, or the
business affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a whole,
whether or not occurring in the ordinary course of business; (ii) the Company
and its subsidiaries have not incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any material verbal or written
agreement or other transaction which is not in the ordinary course of business
or which
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could result in a material reduction in the future earnings of the Company and
its subsidiaries; (iii) the Company and its subsidiaries have not sustained any
material loss or interference with their respective businesses or properties
from fire, flood, windstorm, accident or other calamity, whether or not covered
by insurance; (iv) the Company has not paid or declared any dividends or other
distributions with respect to its capital stock and the Company and its
subsidiaries are not in default in the payment of principal or interest on any
outstanding debt obligations; (v) there has not been any change in the capital
stock or indebtedness material to the Company and its subsidiaries (other than
in the ordinary course of business); and (vi) there has not been any issuance
of warrants, options, convertible securities or other rights to purchase or
acquire capital stock of the Company.
(ac) Each of the Company and its subsidiaries has sufficient
trademarks, trade names, patent rights, mask works, copyrights, licenses,
approvals and governmental authorizations reasonably necessary to conduct their
businesses as now conducted; the expiration of any trademarks, trade names,
patent rights, mask works, copyrights, licenses, approvals or governmental
authorizations would not have a Material Adverse Effect; the Company has no
knowledge of any material infringement by it or its subsidiaries of trademark,
trade name rights, patent rights, mask works, copyrights, licenses, trade
secret or other similar propriety rights (collectively, "Proprietary Rights")
of others, and there is no claim being made against the Company or its
subsidiaries regarding infringement of any Proprietary Right which could have a
Material Adverse Effect; and except as disclosed in the Prospectus, neither the
Company nor its subsidiaries is obligated or under any liability whatsoever to
pay any royalty, fee or other similar payment in respect of any Proprietary
Rights.
(ad) The Company and its subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns and have paid all
taxes shown as due thereon; and the Company has no knowledge of any tax
deficiency which has been or might reasonably be asserted or which has been
threatened against the Company or its subsidiaries which could have a Material
Adverse Effect.
(ae) Except as disclosed in the Prospectus, the Company owns and has
the unrestricted right to use all trade secrets, including know-how, customer
lists, inventions, designs, processes, computer programs and technical data
necessary to manufacture, operate and sell all products and services sold or
developed and proposed to be sold by it as described in the Prospectus, free
and clear of any rights, liens and claims of others. The Company is not using
any material confidential information or trade secrets of any former employer
of any of its past or present employees.
(af) Except as described in the Prospectus, neither the Company nor
any of its subsidiaries has any reason to believe that any governmental body or
agency is considering limiting, suspending, revoking or refusing to grant or
renew any license, certificate, permit, authorization, approval, order,
franchise or right in any material respect reasonably necessary to the conduct
of their respective businesses as now conducted or as proposed to be conducted
as disclosed in the Prospectus.
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(ag) Except as described in the Prospectus, no holder of any security
of the Company has any right to require registration of shares of Common Stock
or any other security of the Company.
(ah) Neither the Company nor any of its subsidiaries is an "investment
Company" or a Company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as mended.
(ai) The Company and each of its subsidiaries has complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida) relating to doing business with the Government of Cuba or with any
person or any affiliate located in Cuba.
(aj) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Shares other than any Preliminary Prospectus or the Prospectus or other
materials permitted by the Act to be distributed by the Company.
(ak) Except for the employee benefit plans described in the
Prospectus, the Company and each of its subsidiaries have not had any employee
benefit plan, profit sharing plan, employee pension benefit plan or employee
welfare benefit plan or deferred compensation arrangements ("Plans") that is
subject to the provisions of the Employee Retirement income Security Act of
1974, as amended, or the rules and regulations thereunder ("ERISA"). All Plans
that are subject to ERISA are, and have been at all times since their
establishment, in compliance with ERISA, in all material respects, and, to the
extent required by the Internal Revenue Code of 1986, as amended (the "Code"),
in compliance with the Code in all material respects. The Company has not had
any employee pension benefit plan that is subject to Part 3 of Subtitle B of
Title I of ERISA or any defined benefit plan or multiemployer plan. The
Company has not maintained retired life and retired health insurance plans that
are employee welfare benefit plans providing for continuing benefit or coverage
for any employee or any beneficiary of any employee after such employee's
termination of employment, except as required by Section 4980B of the Code. To
the knowledge of the Company and each of its subsidiaries, no fiduciary or
other party in interest with respect to any of the Plans has caused any of such
Plans to engage in a prohibited action as defined in Section 406 of ERISA. As
used in this subsection, the terms "defined benefit plan," "employee benefit
plan," "employee pension benefit plan," "employee welfare benefit plan,"
"fiduciary" and "multiemployee plan" shall have the respective meanings
assigned to such terms in Section 3 of ERISA. The Company and each of its
subsidiaries do not have or expect to have any liability for any prohibited
transaction or funding deficiency or any complete or partial withdrawal ability
with respect to any pension, profit sharing or other plan which is subject to
ERISA, to which the Company or any of its subsidiaries is or has ever been a
participant. With respect to such plans, the Company and each of its
subsidiaries are in compliance in all material respects with all applicable
provisions of ERISA.
(al) No labor dispute exists with the employees of the Company or any
of its subsidiaries, and to the knowledge of the Company and each of its
subsidiaries, no such labor dispute is imminent. The Company and each of its
subsidiaries are not aware of any existing or
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imminent labor disturbance by the employees of any of its principal suppliers,
contractors or customers that would have a Material Adverse Effect.
(am) All transactions between and among the Company or any of its
subsidiaries and the officers, directors, promoters and principal stockholders
of the Company or any of its subsidiaries, which transactions are required to
be disclosed in the Prospectus (whether directly in the Prospectus or through
incorporation by reference) by the Act or the applicable rules, regulations,
releases and instructions of the Commission under the Act, have been accurately
disclosed in the Prospectus; and the terms of each such transaction are fair to
the Company or its subsidiaries and no less favorable to the Company or its
subsidiaries than the terms that could have been obtained form unrelated
parties. Except as set forth in the Prospectus, there are no transactions with
affiliated entities that are required to be disclosed by the Act or the
applicable rules, regulations, releases and instructions of the Commission
under the Act.
(an) The Company and each of its subsidiaries are not aware that (i )
any executive, key employee or significant group of employees of the Company or
any of its subsidiaries plans to terminate employment with the Company or such
subsidiary or (ii) any such executive or key employee is subject to any
noncompete, nondisclosure, confidentiality, employment, consulting or similar
agreement that would be violated by the present or proposed business activities
of the Company or any of its subsidiaries.
(ao) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed
in accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to records is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Other than as contemplated by this Agreement, the Company and its
subsidiaries have not incurred any liability for any finder's or broker's fee
or agent's commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Placement
Agent and each person, if any, who controls the Placement Agent within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and judgments caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stored therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Placement Agent furnished in writing to the Company
by you through you expressly for use
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therein. The Company acknowledges that the only information relating to the
Placement Agent furnished in writing to the Company by you expressly for use in
the Registration Statement or Prospectus are the statements set forth in Note 1
to the table on the cover page and under the caption "Plan of Distribution" in
the Prospectus.
(b) In case any action shall be brought against the Placement Agent
or any person controlling the Placement Agent, based upon any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought against
the Company, the Placement Agent shall promptly notify the Company in writing
and the Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all
reasonable fees and expenses. The Placement Agent or any such controlling
person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Placement Agent or such controlling person
unless (i) the employment of such counsel has been specifically authorized in
writing by the Company, (ii) the Company shall have failed to assume the
defense and employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both the Placement Agent or such
controlling person and the Company, as the case may be, and counsel for the
Placement Agent or such controlling person has reasonably concluded that there
may be one or more legal defenses available to the Placement Agent or such
controlling person which are different from or additional to those available to
the Company (in which case the Company shall not have the right to assume the
defense of such action on behalf of the Placement Agent or such controlling
person, it being understood, however, that the Company shall not, in connection
with any one such action or separate but substantially similar or related
actions arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all the Placement Agents and
controlling persons, which firm shall be designated in writing by EVEREN
Securities, Inc. and that all such reasonable fees and expenses shall be
reimbursed as they are incurred). The Company shall not be liable for any
settlement of any such action effected without the written consent of the
Company, whose consent shall not be unreasonably withheld, but if settled with
the written consent of the Company, the Company agrees to indemnify and hold
harmless the Placement Agent and any such controlling person from and against
any loss or liability by reason of such settlement. If at any time the
indemnified party shall have requested the indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than fifteen business days
after receipt by such indemnifying party of the aforesaid request and (ii) the
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
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(c) The Placement Agent agrees to indemnify and hold harmless the
Company and its directors, its officers who sign the Registration Statement,
any person controlling the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to the Placement Agent but only with reference to
information relating to the Placement Agent furnished in writing by or on
behalf of the Placement Agent through you expressly for use in the Registration
Statement, the Prospectus or any Preliminary Prospectus. In case any action
shall be brought against the Company or any of its directors, any such officer
or any person controlling the Company based on the Registration Statement, the
Prospectus or any Preliminary Prospectus and in respect of which indemnity may
be sought against the Placement Agent, the Placement Agent shall have the
rights and duties given to the Company (except that if the Company shall have
assumed the defense thereof, the Placement Agent shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of
the Placement Agent), and the Company and its directors, any such officers and
any person controlling the Company shall have the rights and duties given to
the Placement Agent, by Section 5(b) hereof.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Placement Agent on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Placement Agent in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Placement Agent shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, and the total fees received by the Placement
Agent under this Agreement, bear to the total price to the public of the
Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Placement Agent shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company or the Placement Agent and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Placement Agent agree that it would not be
just and equitable if contribution pursuant to this Section 5(d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses
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reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 5, the Placement Agent shall not be
required to contribute any amount in excess of the amount by which the
total purchase price for the Shares exceeds the amount of any damages
which the Placement Agent 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 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
6. Conditions of Placement Agent's Obligations. The
Placement Agent's obligations hereunder and the closing of the purchase of the
Shares contemplated hereby are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct as of the date hereof and as of the
Closing Date with the same force and effect as if made on and as of such date.
(b) The Registration Statement shall have become effective not later
than 5:00 P.M., New York City time, on the date of this Agreement or at such
later date and time as you may approve in writing, and at the Closing Date no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been commenced
or shall be pending before or contemplated by the Commission.
(c) You shall be satisfied that since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
(i) there shall not have been any action or inaction which might result in a
material adverse change in the condition (financial or otherwise), earnings,
assets, results of operations, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise (a "Material Adverse
Change") which makes it impractical or inadvisable in your judgment to proceed
with the public offering or purchase the Shares as contemplated hereby, (ii)
except as set forth in the Registration Statement and the Prospectus, no verbal
or written agreement or other transaction shall have been entered into by the
Company or any of its subsidiaries, which is not in the ordinary course of
business or which could result in a Material Adverse Change, (iii) no loss or
damage (whether or not insured) to the property of the Company or any of its
subsidiaries shall have been sustained the result of which would have a
Material Adverse Effect, (iv) no legal or governmental action, suit or
proceeding affecting the Company or any of its subsidiaries the result of which
could have a Material Adverse Effect or may materially affect the transactions
contemplated by this Agreement shall have been instituted or threatened and (v)
on the Closing Date you shall have received a certificate dated the Closing
Date, signed by Paul K. Willmott and Thomas H. Ehrlich, in their capacities
with the Company as the Chairman, Chief Executive Officer and President in the
case of Mr. Willmott, and Vice President and Chief Financial Officer in the
case of Mr. Ehrlich, confirming the matters set forth in paragraphs (a), (b)
and (c) of this Section 8.
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(d) You shall have received on the Closing Date an opinion
(satisfactory to you and your counsel), dated as of the Closing Date of Baker &
Hostetler, counsel for the Company, to the effect that:
(i) Each of the Company and its subsidiaries is duly qualified
and is in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure to be
so qualified would not have a Material Adverse Effect and to the best of such
counsel's knowledge, after due inquiry, no proceeding has been instituted in
any such jurisdiction, revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification. All of the issued
and outstanding shares of capital stock of, or other ownership interests in,
each of the Company's subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are owned by the Company free and
clear, to best knowledge of counsel, after due inquiry, of any security
interest, claim, lien, encumbrance or adverse interest of any nature.
(ii) The Company has authorized and outstanding capital stock
as set forth under the heading "Capitalization" in the Prospectus and all of
the issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable, and were
not issued in violation of or subject to any preemptive rights granted by the
Company's certificate of incorporation or by statute or, to the best knowledge
of such counsel after due inquiry, other rights to subscribe for or purchase
securities. The form of certificate for the Shares is in due and proper form
and complies with all applicable statutory requirements.
(iii) The Shares have been duly authorized and, when issued and
delivered, will be validly issued, fully paid and non-assessable. No
preemptive rights granted by the Company's certificate of incorporation or by
statute or, to the best knowledge of such counsel, after due inquiry, rights of
first refusal or other similar subscription or purchase rights of shareholders
of the Company, or of holders of warrants, options, convertible securities or
other rights to acquire shares of capital stock of the Company, exist with
respect to any of the Shares or the issue and sale thereof. To the best
knowledge of such counsel, after due inquiry, no rights to register outstanding
shares of the Company's capital stock, or shares issuable upon the exercise of
outstanding warrants, options, convertible securities or other rights to
acquire shares of such capital stock, exist which have not been validly
exercised or waived with respect to the Registration Statement. The capital
stock of the Company, including the Shares, conforms in all material respects
to the description thereof contained in the Prospectus.
(iv) Except as disclosed in the Prospectus and the financial
statements of the Company and the related notes thereto included in the
Prospectus, neither the Company nor any of its subsidiaries has outstanding any
preemptive rights, or to the best of such counsel's knowledge, after due
inquiry, any options to purchase or other rights to subscribe for or to
purchase, any securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of its capital stock or any such options,
rights, convertible securities or obligations, or any registration rights.
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(v) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms, except as enforceability may be
limited by general equitable principles, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting creditors' rights generally
and except no opinion need be given as to the enforceability of those
provisions relating to indemnity or contribution for liabilities arising under
the Act.
(vi) The Registration Statement has become effective under the
Act, no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the best of such counsel's knowledge,
after due inquiry, pending before or contemplated by the Commission.
(vii) The statements set forth in the Prospectus under the
headings "Capitalization" and "Description of Capital Stock" and Item 15 of
Part II of the Registration Statement insofar as such statements constitute a
summary of documents referred to therein or of legal matters or proceedings,
are complete and accurate in all material respects and fairly summarize in all
material respects the information called for with respect to such documents,
legal matters and proceedings.
(viii) The Shares and the Common Stock conform in all material
respects as to legal matters to the description thereof contained in the
Prospectus.
(ix) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to the best of such
counsel's knowledge, after due inquiry, neither the Company nor any of its
subsidiaries is in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, except as disclosed in the
Prospectus or except where such violation or default would not result in a
Material Adverse Effect.
(x) To the best of such counsel's knowledge, after due
inquiry, and except as disclosed in the Prospectus, each of the Company and its
subsidiaries is in possession of and is operating in compliance with all
authorizations, licenses, permits, consents, approvals, certificates, orders
and other rights of or with any court, regulatory, administrative or other
governmental body reasonably necessary or required to conduct its businesses as
now conducted or to own, lease or operate its properties, except where the
failure to have possession thereof or to comply therewith would not have a
Material Adverse Effect.
(xi) No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any federal,
state or local governmental authority or any court or other tribunal is
required by the Company or any of its subsidiaries for the execution or
delivery of, or the performance of the Company's obligations under, this
Agreement (except
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filings under the Act and filings under Blue Sky or securities laws of states
or other jurisdictions or as may be required under the rules of the NASD).
(xii) No consent of any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which the Company
or any of its subsidiaries is a party, or to which any of their respective
properties or assets are subject, is required for the execution or delivery of,
or the performance of the Company's obligations under, this Agreement.
(xiii) Neither the execution and delivery of, nor the performance
of the Company's obligations under, this Agreement nor the issuance and sale of
the Shares as contemplated hereby nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof, will
violate, result in a breach of, conflict with, nor (with or without the giving
of notice or the passage of time or both) entitle any party to terminate or
call a default under any material contract, agreement, instrument, lease,
license, arrangement, or understanding to which the Company or any of its
subsidiaries is a party, or to which any of their respective properties or
assets are subject, and which are known to counsel after due inquiry, nor
violate or result in a breach of any term of the respective charter or by-laws
of the Company or any of its subsidiaries nor violate, result in a breach of,
or conflict with any law, rule, or regulation, or to the best of such counsel's
knowledge after due inquiry, any order, judgment, or decree binding on the
Company or any of its subsidiaries or to which any of their respective
operations, businesses, properties, or assets are subject, except where such
violation, breach or conflict would not, individually or in the aggregate, have
a Material Adverse Effect or would impair materially the ability of the Company
to perform its obligations hereunder or thereunder.
(xiv) To the best of such counsel's knowledge, after due
inquiry, such counsel does not know of any legal or governmental proceeding
pending or threatened to which the Company or any of its subsidiaries is a
party or to which any of their respective property is subject which is required
to be described in the Registration Statement or the Prospectus and is not so
described or, or of any contract or other document which is required to be
described in the Registration Statement or the Prospectus or is required to be
filed as an exhibit to the Registration Statement which is not described or
filed as required.
(xv) Neither the Company nor any of its subsidiaries is an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(xvi) (1) The Company is eligible to use Form S-3 under the Act
for the registration of the Shares, (2) the Registration Statement and the
Prospectus and any supplement or amendment thereto (except for financial
statements and notes, schedules and other financial statistical data included
therein, as to which no opinion need be expressed) comply as to form in all
material respects with the Act and the Exchange Act, and (3) no facts have come
to the attention of such counsel that have led such counsel to believe that the
Registration Statement and the prospectus included therein at the time the
Registration Statement became effective contained any untrue statement of a
material fact, or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus
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as amended or supplemented, if applicable (except for financial statements as
aforesaid) contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statement therein, in the
light of the circumstances under which they were made, not misleading.
(xvii) Documents incorporated by reference into the Prospectus
(except for financial statements and notes, schedules and other financial
statistical data included therein as to which no opinion need be expressed), at
the time they were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act and the rules and regulations
thereunder; and to the best of such counsel's knowledge, after due inquiry,
such documents, when they were so filed, did 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.
(xviii) No transfer taxes are required to be paid in connection
with the sale and delivery of the Shares from the Company to the purchase of
the Shares hereunder.
In giving the opinions stated in clause (x) above, Baker &
Hostetler as counsel for the Company may rely upon the opinion of another
counsel of the Company, in which case the opinion of Baker & Hostetler shall
state that they believe that the Placement Agent and they are entitled to rely
on the opinion of the other counsel. Baker & Hostetler may also state in the
opinion that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and certificates of public officials; provided that such certificates
have been delivered to the Placement Agent and are in a form satisfactory to
the Placement Agent.
(e) You shall have received on the Closing Date an opinion, dated as
of the Closing Date of Holland & Hart LLP, counsel for the Placement Agent, in
form and substance reasonably satisfactory to you.
(f) You shall have received on the Closing Date a letter in form and
substance satisfactory to you, from, Arthur Andersen LLP, independent public
accountants, with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus and
substantially in the form and substance of the letter delivered to you by
Arthur Andersen LLP on the date of this Agreement.
(g) Prior to the Closing Date the Company shall have furnished you or
your counsel such further information, certificates and documents as you may
reasonably request.
(h) The Company shall not have failed at or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required
to be performed or complied with by the Company at or prior to the Closing
Date.
(i) All proceedings taken in connection with the issuance, sale,
transfer and delivery of the Shares shall be satisfactory in form and substance
to the Placement Agent and it counsel.
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(j) The Minimum Purchase shall have been tendered to the Company in
accordance with the terms hereof.
If any of the conditions herein above provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Placement Agent hereunder may be
terminated by you by notifying the Company of such termination at or prior to
the Closing Date. In such event, the Company and the Placement Agent shall not
be under any obligation to each other, except Sections 3(l), 4, 5, 7 and 9
hereof shall survive and remain in effect.
7. Effective Date of Agreement and Termination. This
Agreement shall become effective upon the later of (i) execution of this
Agreement and (ii) when notification of the effectiveness of the Registration
Statement has been released by the Commission.
This Agreement may be terminated by you by providing notice to
the Company as follows:
(a) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any adverse change or
development involving a prospective adverse change in the condition, financial
or otherwise, of the Company or any of its subsidiaries or the earnings,
affairs, or business prospects of the Company or any of its subsidiaries,
whether or not arising in the ordinary course of business, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and adverse, (iii) the
suspension or material limitation of trading in securities on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market or
limitation on prices for securities on any such exchange or National Market,
(iv) the enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Company or
any of its subsidiaries, (v) the declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States; or
(b) as provided in Section 6 of this Agreement.
Notwithstanding any termination of this Agreement, the obligation
under Sections 3(l), 4, 5, 7 and 9 hereof shall survive and remain in effect.
8. Right of First Refusal. If the Offering is consummated
and if, at any time during the two-year period next following the effective
date of the Registration Statement, the Company or any of its subsidiaries or
affiliates determines to retain a financial advisor, investment banker or other
similar agent in connection with any financial advisory, investment banking or
related service engagement, the Company, its subsidiary or affiliate shall
first offer to
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retain the Placement Agent as its exclusive financial advisor, investment
banker or agent, as the case may be, for the provision of such services on the
basis of the Placement Agent's usual and customary terms, conditions and fees;
provided such terms, conditions and fees are not less favorable than those
generally available to the Company from another comparable financial advisor,
investment banker or similar agent.
9. Miscellaneous; Out-of-Pocket Expenses. Notices given
pursuant to any provision of this Agreement shall be directed as follows: (a)
if to the Company, to Uranium Resources, Inc., 12750 Merit Drive, Suite 1020,
Dallas, TX 75251, and (b) if to the Placement Agent, to EVEREN Securities,
Inc., 77 West Wacker Drive, 31st Floor, Chicago, Illinois 60601, or in any case
to such other address as the person to be notified may have requested in
writing. All notices and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given if delivered, mailed or
transmitted by any standard form of telecommunication.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, its executive
officers and directors and of the Placement Agent set forth in or made pursuant
to this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any of the Placement Agent or by or on behalf of the Company, the executive
officers or directors of the Company or any controlling person of the Company,
(ii) acceptance of the Shares and payment for them hereunder or (iii)
termination of this Agreement.
The Company shall reimburse the Placement Agent for actual
accountable out-of-pocket expenses reasonably incurred by the Placement Agent
in connection with the Offering, including, but not limited to, the fees and
disbursements of the Placement Agent's counsel, unless the closing of the
purchase of Shares contemplated by this Agreement does not occur as a result of
a material breach by the Placement Agent of its obligations under this
Agreement. Total reimbursable expenses paid by the Company under this
paragraph, excluding fees and disbursements of the Placement Agent's counsel,
shall not exceed $41,000. The reimbursable expenses paid by the Company under
this paragraph for fees of the Placement Agent's counsel in the United States
(which includes legal fees for blue sky matters in the United States, but does
not include fees of local counsel relating to international blue sky matters or
any counsel's disbursements, such as travel, filing fees, faxes and
photocopies) shall not exceed a total of $135,000. The Placement Agent shall
not be entitled to reimbursement for the value of the time which the Placement
Agent and its employees have expended in connection with the Offering.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Placement
Agent, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement.
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Each provision of this Agreement shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable under any
applicable law or rule in any jurisdiction, such provision will be ineffective
only to the extent of such invalidity, illegality or unenforceability in such
jurisdiction or any provision hereof in any other jurisdiction.
This Agreement shall be governed and construed in accordance with
the internal laws (and not the laws pertaining to conflicts of laws) of the
State of Colorado.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Placement Agent.
Very truly yours,
URANIUM RESOURCES, INC.
By:
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Name:
Title:
Date:
EVEREN SECURITIES, INC.
By:
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Name:
Title:
Date:
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