1
EXHIBIT 4.5
Execution Copy
INVESTMENT BANKING AND SELLING AGENT AGREEMENT
This INVESTMENT BANKING AND SELLING AGENT AGREEMENT (this "Agreement")
is made and entered into this 6th day of March, 1995, by and between Grant
Bettingen, Inc., a California corporation ("GBI"), and Uranium Resources, Inc.,
a Delaware corporation (the "Corporation").
RECITALS
WHEREAS, Corporation desires to retain GBI to assist it in its efforts
to raise funding from Ryback Management Company ("Ryback") or entities managed
by Ryback.
WHEREAS, GBI is a licensed broker-dealer with the National Association
of Securities Dealers, Inc., the U.S. Securities Exchange Commission and the
State of California, engaged in the investment banking business.
NOW, THEREFORE, in consideration of their mutual promises and
agreements contained herein, the parties agree as follows:
1. Duties of Corporation.
(a) The Corporation shall prepare information to be furnished by
Ryback in connection with the offering of a security to Ryback (the "Offering")
evidencing its investment in the Corporation. The Offering is intended to be
exempt from the registration requirements of Section 5 of the Securities Act of
1933, as amended (the "Act").
(b) In connection with GBI's engagement, the Corporation will
furnish GBI with all information concerning the Corporation which GBI and the
Corporation reasonably deem appropriate and will provide GBI with access to the
Corporation's officers, directors, accountants, counsel and other advisors.
The Corporation represents and warrants to GBI that all such information
concerning the Corporation, furnished to GBI, Ryback or any other Permitted
Offeree, will be true and accurate in all material respects and will not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in light
of the circumstances under which such statements are made. The Corporation
acknowledges and agrees that GBI will be using and relying upon such
information supplied by the Corporation and its officers, agents and others and
any other publicly available information concerning the Corporation without any
independent investigation or verification thereof or independent appraisal by
GBI of the Corporation or its business or assets.
2. Duties of GBI.
(a) GBI will use its best-efforts to assist the Corporation with
the Offering.
2
(b) GBI will attempt to place the security only with Ryback and
such other entities as may be approved by the Corporation in writing
("Permitted Offerees").
(c) GBI will be responsible for all of its own expenses incurred
in connection with the Offering.
3. Term. This Agreement shall have a term of 90 days commencing
on March 6, 1995 and terminating on June 2, 1995, unless extended by mutual
agreement of the Corporation and GBI.
4. Compensation. Upon successful completion of the Offering to
Ryback or such other entities as shall have been approved by the Corporation,
GBI will receive 6.5% in cash of all monies raised, consisting of a commission
of 5% and a nonaccountable reimbursement of 1.5%. In addition, the Corporation
will cause to be issued to GBI, or its designees, an option to purchase shares
of common stock in the Corporation equal to 5% of the aggregate number of
shares of common stock that are purchased in the offering or into which the
securities purchased in the Offering are convertible at an exercise price per
share equal to that price paid by the investors (or the conversion price for
convertible securities). Such option shall expire on the earlier of March 6,
1997 or, if the securities purchased by Ryback and/or other Permitted Offerees
is a security convertible into shares of common stock of the Corporation, the
date on which such conversion privilege expires. GBI's right to compensation
as set forth in this Section 4 shall apply to any offering of securities to
Ryback or a Permitted Offeree which is, (a) consummated during the term of this
Agreement or (b) in which GBI has participated during the term of this
Agreement and which is consummated within 6 months after the end of such term.
5. Adjustments. The number of shares of Common Stock covered by
the Option, as well as the price per share of Common Stock covered by the
Option, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the Common
Stock of the Corporation. Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
In the event of the proposed merger or consolidation of the
Corporation or dissolution or liquidation of the Corporation, the Board shall
notify the Optionee at least fifteen (15) days prior to such proposed action.
To the extent it has not been previously exercised, the Option will terminate
immediately prior to the consummation of such proposed action.
6. Expenses. The Corporation will be responsible for all of its
own expenses relating to the Offering. These would include such items as
printing, postage, legal, travel, entertainment, and telephone.
7. Indemnification.
(a) As consideration for rendering its services in
connection with the Offering, the Corporation agrees to indemnify and hold
harmless GBI and its directors, officers, controlling persons (within the
meaning of Section 15 of the Securities Act of 1933 or Section 20(a) of the
-2-
3
Securities Exchange Act of 1934), if any, agents and employees of GBI
(collectively, "Indemnified Persons" and individually, an "Indemnified Person")
from and against any and all claims, liabilities, losses, damages, costs and
expenses incurred by any Indemnified Person (including reasonable fees and
disbursements of counsel) which
(A) are related to or arise out of (i) actions
taken or omitted to be taken by the Corporation (including any untrue
statements made or any statements omitted to be made) or (ii) actions
taken or omitted to be taken by an Indemnified Person with the
Corporation's consent or in conformity with the Corporation's
instructions or
(B) are otherwise related to or arise out of
GBI's engagement, except as the same are judicially determined to have
resulted from the bad faith or gross negligence of GBI or its
representatives,
and will reimburse GBI and any other Indemnified Person for all reasonable
costs and expenses, including reasonable attorneys' fees as they are incurred,
in connection with investigating, preparing for, or defending any action,
formal or informal claim, investigation, inquiry or other proceeding, whether
or not in connection with pending or threatened litigation, caused by or
arising out of or in connection with GBI or any Indemnified Person being named
as party thereto and whether or not any liability results therefrom.
(b) Any person entitled to indemnification hereunder
agrees to give prompt written notice to the indemnifying party after the
receipt by such person of any written notice of the commencement of any action,
suit, proceeding or investigation or threat thereof made in writing for which
such person will claim indemnification pursuant to this Agreement and, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and the indemnifying party with respect to
such claim, permit the indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to such indemnified party. If the
indemnifying party is not entitled to, or elects not to, assume the defense of
a claim, it will not be obligated to pay the fees and expenses of more than one
counsel with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels. The indemnifying party will
not be subject to any liability for any settlement made without its consent.
(c) The Corporation further agrees that the Corporation
will not, without the prior written consent of GBI, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification may be sought
hereunder (whether or not GBI or any Indemnified Person is an actual or
potential party to such claim, action, suit or proceeding) unless such
settlement, compromise or consent includes an unconditional release of GBI and
each other Indemnified Person hereunder from all liability arising out of such
claim, action, suit or proceeding.
-3-
4
(d) In order to provide for just and equitable
contribution, if a claim for indemnification is made pursuant to these
provisions but is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) that such indemnification is not
available for any reason (except, with respect to indemnification sought solely
pursuant to clause (B) hereof, for the reasons specified), even though the
express provisions hereof provide for indemnification in such case, then the
Corporation, on the one hand, and GBI, on the other hand, shall contribute to
such claim, liability, loss, damage or expense for which such indemnification
or reimbursement is held unavailable in such proportion as is appropriate to
reflect the relative benefits to the Corporation, on the one hand, and GBI on
the other hand, in connection with the transactions contemplated by the
engagement, subject to the limitation that in any event GBI's aggregate
contribution to all losses, claims, damages, liabilities and expenses to which
contribution is available hereunder shall not exceed the amount of fees
(including the value of shares of common stock in excess of the option payment
on the date of exercise of the option) actually received by GBI pursuant to the
engagement.
(e) The foregoing right to indemnity and contribution
shall be in addition to any rights that GBI and/or any other Indemnified Person
may have at common law or otherwise and shall remain in full force and effect
following the completion or any termination of the engagement.
8. Assignment. This Agreement may not be assigned or otherwise
transferred by either party, in whole or in part, without the prior written
consent of the other party, and any attempted assignment or transfer without
such prior written consent shall be null and void and of no force and effect
whatsoever.
9. Registration Rights. If the Corporation determines to
register shares of its Common Stock under the Securities Act, the Corporation
shall (to extent permitted by law) include the Shares underlying the option
granted herein, at its own expense, and shall use its best efforts to effect
such registration (including, without limitation, filing post-effective
amendments, appropriate qualifications under applicable blue sky laws, and
appropriate compliance with the Securities Act) as would permit or facilitate
the sale or distribution of the Shares.
10. Attorneys' Fees and Costs. In the event that either party
brings an action at law or in equity arising from this Agreement against the
other party hereto, then the prevailing party shall be entitled to reasonable
attorneys' fees and costs in addition to any judgment or other relief granted.
11. Applicable Law; Venue. This Agreement shall be construed in
accordance with the laws of the State of California.
12. Arbitration. Except as set forth in Section 14 hereof, any
dispute between the parties relating to the enforcement of this Agreement shall
be resolved by arbitration pursuant to the rules of the American Arbitration
Association. The prevailing party shall be entitled to reasonable attorneys'
fees and costs in addition to any judgment or other relief granted. In any
arbitration commenced by GBI, the parties agree that the arbitration proceeding
shall be held in Anaheim, California. In any arbitration commenced by the
Corporation, the parties agree that the arbitration proceeding shall be held in
Denver, Colorado.
-4-
5
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
14. Confidentiality. During the term of this Agreement and for a
period of one year thereafter GBI will hold in confidence all information
obtained from the Corporation ("Confidential Information") and will not
disclose, disseminate, publish or otherwise reveal any such information,
including but not limited to any business plan, financial data or other
information, without prior approval of the Corporation. This obligation of
confidentiality shall not extend to any information which is shown to have
previously been (i) known to GBI, (ii) part of public knowledge or literature,
or (iii) lawfully received from a third party. The parties hereby agree that
in the event GBI breaches the provision of this Section 14 in any manner,
monetary damages would be inadequate as full compensation, and therefore any
court of competent jurisdiction may also enjoin GBI from disclosing or using
the Confidential Information encompassed by this Agreement. In such case, the
prevailing party shall be entitled to reasonable attorneys' fees in addition to
any other amounts awarded as damages.
15. No Exclusivity. It is understood that the Corporation is not
granting to GBI an exclusive right to act as investment banker for the
Corporation and that the Corporation may engage other entities to pursue other
offerings of securities on behalf of the Corporation. GBI's sole engagement is
to pursue the raising of funds from Ryback, unless otherwise agreed in writing
by the Corporation. The Corporation shall be under no obligation to consummate
any transaction with Ryback, and if none is consummated, GBI shall not be
entitled to compensation hereunder.
15. Waiver and Amendment. No breach of any provision hereof can
be waived unless in writing. Waiver of any one breach of any provision hereof
shall not be deemed to be a waiver of any other breach of the same or any other
provision hereof. This Agreement may be amended only by a written agreement
executed by the parties in interest at the time of modification.
16. Notices. All notices and communications hereunder shall be in
writing and, if sent to Corporation shall be mailed to:
Paul Willmott, President
Uranium Resources, Inc.
Three Park Central, Suite 1100
1515 Arapahoe Street
Denver, Colorado 80202
or, if sent to GBI, shall be mailed to:
Grant Bettingen, President
Grant Bettingen, Inc.
19800 Macarthur Blvd., Suite 680
Irvine, CA 92715
-5-
6
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
"GBI" "Corporation"
Grant Bettingen, Inc. Uranium Resources, Inc.
/s/ Grant Bettingen /s/ Paul K. Willmott
- ------------------------------ ------------------------------
Grant Bettingen, President Paul K. Willmott, President
Execution Copy
B&H
3/6/95
-6-
7
AMENDMENT NO. 1
TO
INVESTMENT BANKING AND SELLING AGENT AGREEMENT
THIS AMENDMENT NO. 1 TO INVESTMENT BANKING AND SELLING AGENT AGREEMENT
is made and entered into this 25th of May, 1995 (the "Amendment No. 1"), by and
between Uranium Resources, Inc., a Delaware corporation (the "Corporation") and
Grant Bettingen, Inc., a California corporation ("GBI").
RECITALS:
A. The parties have entered into that certain Investment Banking
and Selling Agent Agreement, dated March 6, 1995 (the "Investment Banking and
Selling Agent Agreement"), by and between the Corporation and GBI.
B. Pursuant to Section 15 of the Investment Banking and Selling
Agent Agreement, the parties have agreed to amend the Investment Banking and
Selling Agent Agreement as provided herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions contained herein and the sum of $10.00, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties, intending to be legally bound, hereby agree as follows:
1. The Investment Banking and Selling Agent Agreement is hereby
amended as follows:
1.1 Section 4 of the Investment Banking and Selling Agent
Agreement is hereby deleted in its entirety and replaced with the following new
Section 4:
4. Compensation. Upon consummation of the
closing (the "Closing") of the transactions contemplated by that certain Note
and Warrant Purchase Agreement, dated of even date herewith, by and among the
Corporation, Lindner Investments, a Massachusetts business trust (on behalf of
its Lindner Bulwark Fund Series) and Lindner Dividend Fund, Inc., a Missouri
corporation, the Corporation will pay to GBI the sum of $120,000 in cash. In
addition, upon consummation of the Closing, the Corporation will cause to be
issued to GBI or its designees, 35,000 shares of Common Stock of the
Corporation held in treasury (the "Treasury Stock") and a warrant (the
"Warrant") to purchase 100,000 shares of Common Stock of the Corporation (the
"Warrant Stock") at an exercise price of $4.00 per share. Such Warrant shall
expire three years after the date of the Closing of the Offering. Upon
consummation of the Closing, the Corporation shall issue to GBI, or its
designees, a Warrant certificate substantially in the form attached hereto as
Exhibit A.
8
1.2 Section 5 is hereby amended by deleting the word
"Option" each place it appears in Section 5 and replacing it with the word
"Warrant" and by deleting the word "Optionee" in the first sentence of the
second paragraph of Section 5 and replacing it with the words "holder of the
Warrant."
1.3 The clause "(including the value of shares of common
stock in excess of the option payment on the date of exercise of the option)"
in Section 7(d) is hereby deleted in its entirety and replaced with the
following clause: "(including the value of shares of Common Stock in excess of
the exercise price of the Warrant on the date of exercise of the Warrant)."
1.4 Section 9 is hereby deleted in its entirety and
replaced with the following new Section 9:
9. Registration Rights.
(a) Demand Rights. Subject to the
provisions set forth below, at any time after the date hereof, but prior to the
third anniversary date hereof, the Corporation shall, upon the written demand
of the holder of the Treasury Stock or the holder of the Warrant or Warrant
Stock issuable upon exercise of the Warrant on no more than two (2) occasions,
prepare, file with the Securities and Exchange Commission (the "Commission"),
and use its best efforts to have declared effective a registration statement
with respect to the distribution of all of the shares of Warrant Stock and all
of the shares of Common Stock issuable upon exercise of the Warrant, but not
less than fifty percent (50%) of the aggregate number of shares of Treasury
Stock and Warrant Stock. Such demand shall be made by written notice to the
Corporation by the holder of the Treasury Stock or the holder of the Warrant or
Warrant Stock (as the case may be), which notice shall request the preparation
of a registration statement pursuant to the terms of this Section 9(a) and
include the number of shares of Treasury Stock or Warrant Stock to be offered
pursuant to such registration statement and be sent to all other holders of the
Treasury Stock or the Warrant or Warrant Stock (as the case may be). The
Corporation may include in such registration any securities of the Corporation
for sale by the Corporation or persons other than the Corporation, but the
holder of the Treasury Stock or the Warrant or Warrant Stock shall have
priority with respect to inclusion in the registration statement of the shares
of Treasury Stock or Warrant Stock specified in the demand for registration
made pursuant to the provisions of this Section 9(a). All expenses incident to
the Corporation's performance of or compliance with this Section 9(a),
including, without limitation, all registration and filing fees, fees and
expenses of compliance with the securities or blue sky laws, and reasonable
printing expenses, messenger, delivery, and mailing expenses, and fees and
disbursements of counsel for the Corporation and all independent and certified
public accountants, underwriters (excluding discounts and commissions) and
other persons retained by the Corporation shall be borne and paid by the person
requesting registration pursuant to this Section 9(a). The Corporation shall
not be obligated to effect any demand registration pursuant to this Section
9(a): (a) more than two (2) times; (b) if the amount of shares as to which
registration has been requested may be sold at that time without registration
under the Securities Act of 1933, as amended, pursuant to Rule 144 thereunder
(or any successor rule thereto); (c) unless the registration can be made on a
Form S-3 (or any successor Form thereto); (d) if in the good faith judgment of
the Board of Directors of the Corporation, such registration would be
-2-
9
materially detrimental to the Corporation and the Board Directors of the
Corporation concludes, as a result that it is in the best interests of the
Corporation to defer the filing of a registration statement in connection with
such demand, provided that the Corporation may not defer the filing for a
period of more than ninety (90) days after receipt of the initial request; (e)
on a date which, under the General Rules and Regulations of the Commission,
would require the inclusion in the registration statement covering such demand
of historical financial statements of the Corporation other than those
contained in the most recently required report of the Corporation on Forms 10-K
and 10-Q, or financial statements of an acquired business or businesses at a
time prior to the time such financial statements would be required to be filed
by the Corporation pursuant to Form 8-K; or (f) if the demand relates to the
shares of Warrant Stock issuable upon exercise of the Warrants, unless the
Warrant is duly exercised and the shares of Warrant Stock have been issued
prior to receipt by the Corporation of the written demand for registration.
(b) Piggyback Registration. If the
Corporation, at any time commencing on the date of this Agreement and expiring
on the third anniversary date hereof, determines to register shares of its
Common Stock under the Act, the Corporation shall (to the extent permitted by
law) include the Treasury Stock and the Warrant Stock, at its own expenses, and
shall use its best efforts to effect such registration (including, without
limitation, filing post-effective amendments, appropriate qualifications under
applicable blue sky laws, and appropriate compliance with the Act) as would
permit or facilitate the sale or distribution of the Treasury Stock and Warrant
Stock.
1.5 The address for notice to the Corporation in Section
16 shall be deleted in its entirety and replaced with the following:
Paul K Willmott, President
Uranium Resources, Inc.
303 East 17th Avenue, Suite 700
Denver, Colorado 80203
2. Except as amended hereby, the Investment Banking and Selling
Agent Agreement shall not be amended, changed, or modified by this Amendment
No. 1 and shall remain in full force and effect.
-3-
10
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment No. 1 to be duly executed and delivered as of the date first above
written.
URANIUM RESOURCES, INC.
By:/s/ Paul K. Willmott
----------------------------------------
Paul K. Willmott
President
GRANT BETTINGEN, INC.
By:/s/ Grant Bettingen
-------------------------------------
Grant Bettingen
President
-4-