Pretium Resources Inc.
|
(Name of Issuer)
|
Common shares, no par value
|
(Title of Class of Securities)
|
74139C102
|
(CUSIP Number)
|
Robin Wang
c/o Zijin Mining Group Co., Ltd.
1 Zijin Road, Shanghang County, Fujian Province,
People’s Republic of China
+86 592 2933 623
|
Copy to:
Thomas M. Rose
Troutman Sanders LLP
401 9th Street, N. W.
Suite 1000
Washington, DC 20004-2134
(202) 274-2950
|
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
|
January 16, 2015
|
(Date of Event which Requires Filing of this Statement)
|
1
|
NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
XinXing Global Limited
|
||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP
|
(a) q
(b) þ
|
|
3
|
SEC USE ONLY
|
||
4
|
SOURCE OF FUNDS
AF
|
||
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
|
q
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7
|
SOLE VOTING POWER
0
|
|
8
|
SHARED VOTING POWER
12,836,826
|
||
9
|
SOLE DISPOSITIVE POWER
0
|
||
10
|
SHARED DISPOSITIVE POWER
12,836,826
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,836,826
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
|
q
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.68%(1)
|
||
14
|
TYPE OF REPORTING PERSON
CO
|
(1)
|
Calculation of the foregoing percentage is based on information set forth in the Subscription Agreement, in which the Issuer represented that there were 116,828,081 Common Shares issued and outstanding as of December 8, 2014, prior to the issuance of 12,836,826 Common Shares to XinXing Global Limited and the issuance of 2,897,490 Common Shares to other investors on January 21, 2015.
|
1
|
NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Zijin Mining Group Co., Ltd.
|
||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP
|
(a) q
(b) þ
|
|
3
|
SEC USE ONLY
|
||
4
|
SOURCE OF FUNDS
WC
|
||
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
|
q
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
People’s Republic of China
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7
|
SOLE VOTING POWER
0
|
|
8
|
SHARED VOTING POWER
12,836,826
|
||
9
|
SOLE DISPOSITIVE POWER
0
|
||
10
|
SHARED DISPOSITIVE POWER
12,836,826
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,836,826
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
|
q
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.68%(1)
|
||
14
|
TYPE OF REPORTING PERSON
OO (a joint stock limited company incorporated in the People’s Republic of China with limited liability)
|
(1)
|
Calculation of the foregoing percentage is based on information set forth in the Subscription Agreement, in which the Issuer represented that there were 116,828,081 Common Shares issued and outstanding as of December 8, 2014, prior to the issuance of 12,836,826 Common Shares to XinXing Global Limited and the issuance of 2,897,490 Common Shares to other investors on January 21, 2015.
|
1
|
NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Gold Mountains (H.K.) International Mining Company Limited
|
||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF GROUP
|
(a) q
(b) þ
|
|
3
|
SEC USE ONLY
|
||
4
|
SOURCE OF FUNDS
WC
|
||
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e)
|
q
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong, S.A.R.
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7
|
SOLE VOTING POWER
0
|
|
8
|
SHARED VOTING POWER
12,836,826
|
||
9
|
SOLE DISPOSITIVE POWER
0
|
||
10
|
SHARED DISPOSITIVE POWER
12,836,826
|
||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,836,826
|
||
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
|
q
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.68%(1)
|
||
14
|
TYPE OF REPORTING PERSON
CO
|
(1)
|
Calculation of the foregoing percentage is based on information set forth in the Subscription Agreement, in which the Issuer represented that there were 116,828,081 Common Shares issued and outstanding as of December 8, 2014, prior to the issuance of 12,836,826 Common Shares to XinXing Global Limited and the issuance of 2,897,490 Common Shares to other investors on January 21, 2015.
|
|
(a)
|
This Schedule 13D is being jointly filed by Zijin Mining Group Co., Ltd., a joint stock limited company incorporated in the People’s Republic of China with limited liability (“Zijin”), Gold Mountains (H.K.) International Mining Company Limited, a corporation existing under the laws of Hong Kong, S.A.R. (“Gold Mountains”) and XinXing Global Limited, a corporation existing under the laws of the British Virgin Islands (“XinXing”, and collectively with Gold Mountains and Zijin, the “Reporting Persons”). XinXing is a direct wholly-owned subsidiary of Gold Mountains and Gold Mountains is a direct wholly-owned subsidiary of Zijin. Neither Zijin nor Gold Mountains directly owns any securities of the Issuer. However, as a result of the relevant ownership structure of the Reporting Persons, Zijin and Gold Mountains may be deemed to beneficially own the securities of the Issuer directly owned by XinXing. Each of XinXing, Gold Mountains and Zijin are mining companies, with Zijin being a large-scale Chinese state-owned mining group that is one of the largest gold producers, second largest mineral copper producer, and an important zinc, tungsten and iron ore producer in China.
|
|
(b)
|
The address of the principal place of business and office of each of the Reporting Persons is c/o Zijin Mining Group Co., Ltd., 19/F, Haifu Center, 599 Sishui Dao, Huli, Xiamen 361016, China.
|
|
(c)
|
See Item (f).
|
|
(d)
|
During the past five years, none of the Reporting Persons nor, to the knowledge of the Reporting Persons, any of their respective executive officers or directors, has been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors).
|
|
(e)
|
During the past five years, none of the Reporting Persons nor, to the knowledge of the Reporting Persons, any of their respective executive officers or directors, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
|
|
(f)
|
The name, citizenship, business address, principal business occupation or employment of each of the directors and executive officers of each of the Reporting Persons are set forth on Schedule A hereto, which is incorporated herein by reference.
|
|
(a)
|
As of the date of filing this Schedule 13D, XinXing is the holder of record of 12,836,826 Common Shares, representing 9.68% of the issued and outstanding Common Shares of the issuer. Gold Mountains directly owns 100% of XinXing and therefore may be deemed to have beneficial ownership of the 12,836,826 Common Shares held of record by XinXing, representing 9.68% of the issued and outstanding Common Shares of the issuer. Gold Mountains disclaims beneficial ownership of the shares shown as beneficially owned and held of record by XinXing, except to the extent of its pecuniary interest therein. Zijin directly owns 100% of Gold Mountains and therefore may be deemed to have beneficial ownership of the 12,836,826 Common Shares held of record by XinXing, representing 9.68% of the issued and outstanding Common Shares of the issuer. Zijin disclaims beneficial ownership of the shares shown as beneficially owned and held of record by XinXing, except to the extent of its pecuniary interest therein.
|
|
(b)
|
Each of the Reporting Persons may be deemed to exercise the shared voting and dispositive authority over 12,836,826 Common Shares held of record by XinXing.
|
|
(c)
|
Except for the transactions described in this Schedule 13D, no Reporting Person has effected any transactions in the Issuer’s Common Shares during the 60 days preceding the date of this Schedule 13D.
|
|
(d)
|
Not applicable.
|
|
(e)
|
Not applicable.
|
99.1
|
Joint Filing Agreement among the Reporting Persons, dated as of January 26, 2015
|
99.2
|
Subscription Agreement, dated as of December 8, 2014, by and between XinXing Global Limited and Pretium Resources Inc.
|
ZIJIN MINING GROUP CO., LTD.
|
|||
By:
|
/s/ Lan Fusheng | ||
Name: | Lan Fusheng | ||
Title: | Vice Chairman |
GOLD MOUNTAINS (H.K.) INTERNATIONAL MINING COMPANY LIMITED
|
|||
By:
|
/s/ Lan Fusheng | ||
Name: | Lan Fusheng | ||
Title: | Chairman |
XINXING GLOBAL LIMITED
|
|||
By:
|
/s/ Fan Cheung Man | ||
Name: | Fan Cheung Man | ||
Title: | Director |
Name and Citizenship
|
Position | Principal Occupation or Employment | Business Address | |||
Mr. Huang Xiaodong,
Chinese
|
Director and Vice President
|
Production plan and operational managment
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
|||
Mr. Xie Chengfu
Chinese
|
Vice President
|
Key projects and CSR
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
|||
Mr. Yang Kaihui
Canadian
|
Vice President
|
Geological exploration and overseas operation
|
19/F, Tower B, Haifu Center, 599 Sishui Road, Huli District, Xiamen, China
|
|||
Ms. Lin Hongying
Chinese
|
Chief Financial Director
|
Corporate finance and capital management
|
1 Zijin Road, Shanghang County, Fujian Province, PRC
|
|||
Ms. Liu Qiang
Chinese
|
Secretary of the Board of Directors
|
Routine work of the Board of Directors, investor relations and information disclosure
|
20/F, Tower B, Haifu Center, 599 Sishui Road, Huli District, Xiamen, China
|
|||
Mr. Fan Cheung Man
Hong Kongnese
|
Company Secretary
|
Investor relations in HK and information disclosure
|
Unit7503A, 75 Floor, International Commerce Center, No.1 Austin Road West, Kowloon, HK
|
|||
Mr. Chen Jinghe
Chinese
|
Chairman of Board
|
Overall corporate coordination and organization
|
20/F, Tower B, Haifu Center, 599 Sishui Road, Huli District, Xiamen, China
|
|||
Mr. Wang Jianhua
Chinese
|
Director and President
|
Operating management and party affairs
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
|||
Mr. Qiu Xiaohua
Chinese
|
Director and Vice Chairman
|
Corporate development strategy and the establishment and operation of Commodity Exchange
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
|||
Mr. Lan Fusheng
Chinese
|
Director and Vice Chairman
|
Investment projects and M&A
|
20/F, Tower B, Haifu Center, 599 Sishui Road, Huli District, Xiamen, China
|
|||
Mr. Zou Laichang
Chinese
|
Director andVice President
|
Logistics management and scientific and technological management
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
|||
Mr. Lin Hongfu
Chinese
|
Director and Vice President
|
Zijinshan Gold/Copper mines
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
|||
Mr. Li Jian
Chinese
|
Non-executive Director
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
||||
Mr. Lu Shihua
Chinese
|
Independent Non-executive Director
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
||||
Mr. Ding Shida
Chinese
|
Independent Non-executive Director
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
||||
Mr. Jiang Yuzhi
Chinese
|
Independent Non-executive Director
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
||||
Mr. Sit Hoi Wah
Hong Kongnese
|
Independent Non-executive Director
|
1 Zijin Road, Shanghang County, Fujian Province, China
|
Name and Citizenship
|
Position | Principal Occupation or Employment | Business Address | |||
Mr Lan Fusheng
Chinese
|
Director and Chairman | Overall corporate coordination and management | 20/F, Tower B, Haifu Center, 599 Sishui Road, Huli District, Xiamen, China | |||
Mr. Fan Cheung Man
Hong Kongnese
|
Diector and General Manager
|
Daily operation
|
Unit 7503A, 75/F, International Commerce Center, 1 Austin Road West, Kowloon, Hong Kong.
|
|||
Mr Yang Kaihui
Canadian
|
Director | 19/F, Tower B, Haifu Center, 599 Sishui Road, Huli District, Xiamen, China | ||||
Ms. Yang Yifang
Canadian
|
Diector
|
Unit 7503A, 75/F, International Commerce Center, 1 Austin Road West, Kowloon, Hong Kong.
|
Name and Citizenship
|
Position | Principal Occupation or Employment | Business Address | |||
Mr. Fan Cheung Man
Hong Kongness
|
Director
|
Daily Operation
|
Unit 7503A, 75/F, International Commerce Center, 1 Austin Road West, Kowloon, Hong Kong.
|
|||
Ms. Zhang Qiaochun
|
Director | Unit 7503A, 75/F, International Commerce Center, 1 Austin Road West, Kowloon, Hong Kong. | ||||
Mr. Yiu Kai
|
Director
|
Unit 7503A, 75/F, International Commerce Center, 1 Austin Road West, Kowloon, Hong Kong.
|
ZIJIN MINING GROUP CO., LTD.
|
|||
By:
|
/s/ Lan Fusheng | ||
Name: | Lan Fusheng | ||
Title: | Vice Chairman |
GOLD MOUNTAINS (H.K.) INTERNATIONAL MINING COMPANY LIMITED
|
|||
By:
|
/s/ Lan Fusheng | ||
Name: | Lan Fusheng | ||
Title: | Chairman |
XINXING GLOBAL LIMITED
|
|||
By:
|
/s/ Fan Cheung Man | ||
Name: | Fan Cheung Man | ||
Title: | Director |
ARTICLE 1 INTERPRETATION
|
1
|
|
1.1
|
Defined Terms
|
1
|
1.2
|
Rules of Construction
|
6
|
1.3
|
Time of Essence
|
7
|
1.4
|
Governing Law and Submission to Jurisdiction
|
7
|
1.5
|
Severability
|
7
|
1.6
|
Entire Agreement
|
8
|
1.7
|
Accounting Principles
|
8
|
1.8
|
Knowledge
|
8
|
ARTICLE 2 PURCHASE OF COMMON SHARES
|
8
|
|
2.1
|
Investment in Company
|
8
|
2.2
|
Satisfaction of the Purchase Price
|
9
|
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
|
9
|
|
3.1
|
Representations and Warranties of the Company
|
9
|
3.2
|
Representations and Warranties of the Investor
|
19
|
3.3
|
Survival of Representations and Warranties
|
21
|
3.4
|
Material Changes
|
21
|
ARTICLE 4 ADDITIONAL COVENANTS
|
21
|
|
4.1
|
Board Representation
|
21
|
4.2
|
Participation Rights
|
23
|
4.3
|
Information Rights
|
26
|
4.4
|
Listing of Common Shares
|
26
|
4.5
|
Actions to be Taken by Company
|
26
|
ARTICLE 5 CLOSING
|
27
|
|
5.1
|
Closing
|
27
|
5.2
|
Company Closing Deliveries and Conditions for Acceptance
|
27
|
5.3
|
Investor Closing Deliveries
|
31
|
ARTICLE 6 GENERAL PROVISIONS
|
32
|
|
6.1
|
Termination
|
32
|
6.2
|
Notices
|
33
|
6.3
|
Further Assurances
|
34
|
6.4
|
Amendments
|
34
|
6.5
|
Assignment
|
34
|
6.6
|
Successors and Assigns
|
34
|
6.7
|
No Partnership
|
34
|
6.8
|
Public Releases
|
34
|
6.9
|
Counterparts
|
35
|
1.1
|
Defined Terms
|
1.2
|
Rules of Construction
|
|
(a)
|
the terms “Agreement”, “this Agreement”, “the Agreement”, “hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions refer to this Agreement in its entirety and not to any particular provision hereof;
|
|
(b)
|
references to an “Article”, “Section” or “Schedule” followed by a number or letter refer to the specified Article or Section of or Schedule to this Agreement;
|
|
(c)
|
the division of this Agreement into articles and sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement;
|
|
(d)
|
words importing the singular number only shall include the plural and vice versa and words importing the use of any gender shall include all genders;
|
|
(e)
|
the word “including” is deemed to mean “including without limitation”;
|
|
(f)
|
the terms “party” and the “parties” refer to a party or the parties to this Agreement;
|
|
(g)
|
any reference to this Agreement means this Agreement as amended, modified, replaced or supplemented from time to time;
|
|
(h)
|
any reference to a statute, regulation or rule shall be construed to be a reference thereto as the same may from time to time be amended, re-enacted or replaced, and any reference to a statute shall include any regulations or rules made thereunder;
|
|
(i)
|
all dollar amounts refer to Canadian dollars;
|
|
(j)
|
any time period within which a payment is to be made or any other action is to be taken hereunder shall be calculated excluding the day on which the period commences and including the day on which the period ends; and
|
|
(k)
|
whenever any action is required to be taken or period of time is to expire on a day other than a Business Day, such action shall be taken or period shall expire on the next following Business Day.
|
1.3
|
Time of Essence
|
1.4
|
Governing Law and Submission to Jurisdiction
|
|
(a)
|
This Agreement shall be interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the Province of British Columbia and the federal laws of Canada applicable in that province.
|
|
(b)
|
Each of the parties irrevocably and unconditionally (i) submits to the nonexclusive jurisdiction of the courts of the Province of British Columbia over any action or proceeding arising out of or relating to this Agreement, (ii) waives any objection that it might otherwise be entitled to assert to the jurisdiction of such courts and (iii) agrees not to assert that such courts are not a convenient forum for the determination of any such action or proceeding.
|
1.5
|
Severability
|
1.6
|
Entire Agreement
|
1.7
|
Accounting Principles
|
1.8
|
Knowledge
|
2.1
|
Investment in Company
|
2.2
|
Satisfaction of the Purchase Price
|
3.1
|
Representations and Warranties of the Company
|
|
(a)
|
Corporate Status.
|
|
(i)
|
The Company. The Company is a corporation duly incorporated, organized and subsisting under the Act and has all requisite corporate power, capacity and authority to own its properties and assets, to carry on its business as presently conducted and as proposed to be conducted as contemplated in the Continuous Disclosure Documents and to enter into and deliver this Agreement to which it is or will be a party and to perform its obligations thereunder. No act or proceeding has been taken by or against the Company in connection with its liquidation, winding-up or bankruptcy.
|
|
(ii)
|
Subsidiary. Each Subsidiary is a corporation duly incorporated, organized and subsisting under the Act and has all requisite corporate power, capacity and authority to own its properties and assets and to carry on its business as presently conducted and as proposed to be conducted as contemplated in the Continuous Disclosure Documents. No act or proceeding has been taken by or against a Subsidiary in connection with its liquidation, winding-up or bankruptcy.
|
|
(iii)
|
Authority of the Company. All necessary action has been taken by the Company to authorize the execution and delivery by the Company of this Agreement to which the Company is currently a party and the performance by the Company of its obligations thereunder. At the time of execution of this Agreement by the Company, all necessary action will have been taken by the Company to authorize the execution and delivery by the Company of this Agreement and the performance by the Company of its obligations thereunder, and this Agreement will have been duly executed and delivered and will constitute a valid and legally binding obligation of the Company enforceable against it in accordance with its terms.
|
|
(iv)
|
Continuous Disclosure Documents. The Continuous Disclosure Documents contain no untrue statement of a material fact as at the date thereof nor do they omit to state a material fact which, at the date thereof, was required to have been stated or was necessary to prevent a statement that was made from being false or misleading in the circumstances in which it was made and were prepared in accordance with and comply with Securities Laws in the Qualifying Provinces, other than as subsequently corrected and published or filed by the Company prior to the date of this Agreement;
|
|
(b)
|
Financial Statements. The Financial Statements (i) are in accordance with the books, records and accounts of the Company and the Subsidiaries; (ii) are complete and correct in all material respects and present fairly, on a consolidated basis, the assets, liabilities and financial position of the Company as at the date indicated and the cash flows and results of operations of the Company for the periods specified; and (iii) have been prepared in accordance with IFRS.
|
|
(c)
|
Undisclosed Liabilities. None of the Company nor the Subsidiaries have any material liabilities, obligations, indebtedness or commitments, whether accrued, absolute, contingent or otherwise required to be disclosed under IFRS, which are not disclosed or referred to in the Financial Statements.
|
|
(d)
|
Tax Returns. The Company and the Subsidiaries have accurately prepared and timely filed all federal, provincial, local and foreign tax returns which are required to be filed, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable.
|
|
(e)
|
Tax Liabilities. There are no liens for taxes on the assets of the Company or the Subsidiaries except for taxes not yet due, there are no audits of any of the tax returns of the Company or the Subsidiaries reasonably expected to have a Material Adverse Effect on the properties, business or assets of the Company or the Subsidiaries which are known by the Company’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any government agency of any deficiency which would have a Material Adverse Effect on the properties, business or assets of the Company or the Subsidiaries.
|
|
(f)
|
Significant Acquisitions and Significant Dispositions. No acquisitions or dispositions have been made by the Company or the Subsidiaries in the most recently completed fiscal year that are “significant acquisitions” or “significant dispositions” under Securities Laws and none of the Company nor the Subsidiaries are in discussions with another party in respect of any proposed acquisition of a business or related business that has progressed to a state where a reasonable person would believe that the likelihood of the Company or the Subsidiaries completing the acquisition is high and that, if completed by the Company or the Subsidiaries as at the date hereof, would be a “significant acquisition”, in each case which would require disclosure pursuant to Securities Laws.
|
|
(g)
|
Auditors. PWC are independent with respect to the Company as required by Securities Laws and are independent public accountants as required by the U.S. Securities Act, the U.S. Exchange Act and the Rules and Regulations. There has not been any reportable event (within the meaning of NI 51-102) between the Company and PWC.
|
|
(h)
|
Internal Controls and Disclosure Controls. Each of the Company and the Subsidiaries maintain a system of internal accounting and other controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accounting for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company believes that the Company’s and the Subsidiaries’ internal control over financial reporting are effective and the Company is not aware of any material weakness in their respective internal control over financial reporting. Since December 31, 2013, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. The Company and its Subsidiaries maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the U.S. Exchange Act and Securities Laws) that comply with the requirements of the U.S. Exchange Act and Securities Laws; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and the Subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities. Such disclosure controls and procedures are effective.
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(i)
|
Transfer Agent. Computershare Investor Services Inc., at its principal offices in Vancouver and Toronto, has been duly appointed as the registrar and transfer agent in respect of the Common Shares.
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(j)
|
Regulatory Matters. The Common Shares are listed and posted for trading on the Exchanges and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Shares under the U.S. Exchange Act or delisting the Common Shares from any of the Exchanges, nor has the Company received any notification that the SEC or the Exchanges are contemplating terminating such registration or listing. Prior to the Closing Date, the TSX will have conditionally approved the listing of the Subscription Shares, subject only to the Company fulfilling the customary post-closing conditions of TSX. The Company has applied or will apply to have the Subscription Shares approved for listing on the NYSE as soon as practicable and any event no later than one Business Day after the Closing Date.
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(k)
|
Consents. No consent, approval, Authorization, order, filing, registration or qualification of or with any court, governmental agency or body or regulatory authority is required except such as shall have been made or obtained at or before the Closing Date from the Securities Regulators and the Exchanges, for the execution, delivery and performance by the Company of this Agreement, and the consummation by the Company of the transactions contemplated herein.
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(l)
|
No Material Change in Company. Except as disclosed in the Continuous Disclosure Documents, subsequent to the date of the Financial Statements, there has not been any material change (financial or otherwise) in the business, affairs, liabilities (absolute, accrued, contingent or otherwise), capital, operations, financial condition, properties, prospects or assets of the Company or the Subsidiaries and no event has occurred or circumstance exists which could reasonably be expected to result in such a material change.
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(m)
|
Capitalization.
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(i)
|
The Company. The Company is authorized to issue an unlimited number of common shares, without par value, of which 116,828,081 common shares are issued and outstanding as at the date hereof, and an unlimited number of preferred shares, none of which are issued and outstanding as at the date hereof. All of the issued and outstanding shares of the Company are fully paid and non-assessable and have been duly and validly authorized and issued, in compliance with applicable laws and not in violation of or subject to any pre-emptive or similar right that entitles any person to acquire from the Company any common shares of the Company or other security of the Company or any security convertible into, or exercisable for, common shares of the Company or any other such security.
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(ii)
|
Subsidiaries. The Company owns all of the issued and outstanding securities of the Subsidiaries, free and clear of any Encumbrance, and has no other subsidiaries. All of the outstanding equity interests in the Subsidiaries have been duly authorized and validly issued and all of such equity interests are outstanding as fully paid and non-assessable shares. There exist no options, warrants, purchase rights, or other contracts or commitments that would require the Company or any other person to sell, transfer or otherwise dispose of any equity interests of the Subsidiaries or for the issue or allotment of any unissued shares in the capital of the Subsidiaries or any other security convertible into or exchangeable for any such shares.
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(n)
|
Fully Paid Shares. All of the Subscription Shares to be sold by the Company hereunder have been, or will by the Closing Time be, duly authorized and issued as fully paid and non-assessable shares, and will have been issued in compliance with all applicable laws and not in violation of or subject to any pre-emptive or similar right that entitles any person to acquire from the Company any common shares of the Company, or other security of the Company, or any security convertible into, or exercisable for, common shares of the Company or any other such security.
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(o)
|
Books and Records.
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(i)
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The minute books and corporate records of the Company are true and correct in all material respects and contain all minutes of all meetings and all resolutions of the Directors (and any committees of such Directors) and shareholders of the Company as at the date hereof and at the Closing Date will contain all minutes of all meetings and all resolutions of the Directors (and any committees of such Directors) and shareholders of the Company.
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(ii)
|
The minute books and corporate records of the Subsidiaries are true and correct in all material respects and contain all minutes of all meetings and all resolutions of the directors (and any committees of such directors) and shareholders of the Subsidiaries as at the date hereof and at the Closing Date will contain all minutes of all meetings and all resolutions of the directors (and any committees of such directors) and shareholders of the Subsidiaries.
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(p)
|
Voting Agreements. Except as provided herein, the Company is not and will not be a party to any agreement, nor is the Company aware of any agreement which affects the voting control of any of the securities of the Subsidiaries.
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(q)
|
Options. Except in connection with (i) the stock options granted under the Company’s stock option plan (ii) the pre-emptive rights of Liberty Metals & Mining Holdings, LLC (iii) the pre-emptive rights of Silver Standard Resources Inc. and (vi) the pre-emptive rights provided herein, no person now has, or will immediately following the Closing Date have, any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option (including convertible or exchangeable securities or warrants) for the purchase, subscription for or issuance of common shares of the Company or the Subsidiaries.
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(r)
|
Registration Rights. No person has, or will immediately following the Closing Date have, any rights to require qualification for distribution under Securities Laws its common shares of the Company.
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(s)
|
No Defaults. The execution and delivery of this Agreement, the fulfilment of the terms hereof by the Company, and the sale and delivery of the Subscription Shares as contemplated by this Agreement, do not and will not:
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(i)
|
require the consent, approval, Authorization, registration or qualification of or with any Governmental Entity, exchange, Securities Regulator or other regulatory commission or agency or third party, except those that are required under Securities Laws and applicable exchange regulations, all of which have been obtained (or will be obtained prior to the Closing Date); or
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(ii)
|
result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with:
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(A)
|
any of the provisions of the constating documents of the Company or of the Subsidiaries or any resolutions of the directors or shareholders of the Company or of the Subsidiaries or any committee of any of them;
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(B)
|
any indenture, agreement or other instrument to which the Company or the Subsidiaries are a party or by which it is contractually bound;
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(C)
|
any statute, rule, regulation or law applicable to the Company or the Subsidiaries including, without limitation, the Securities Laws, or any judgement, order, decree or decision of any governmental or regulatory body, agency, commission, tribunal, court or exchange having jurisdiction over the Company or the Subsidiaries; or
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(D)
|
any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) by the Company or the Subsidiaries under, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any Encumbrance upon any property or assets of the Company or the Subsidiaries under, any contract, indenture, mortgage, hypothec, deed of trust, loan agreement, note, lease, license, franchise agreement, Authorization, permit, certificate or other agreement or document to which the Company or the Subsidiaries are a party or by which it is bound, or to which its assets or businesses is subject (each, for the purpose of this section 3, a “Contract”),
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(t)
|
Marketable Title to Assets
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(i)
|
The Company and the Subsidiaries own, hold or lease all such properties as are necessary to the conduct of their respective businesses as presently operated and as proposed to be operated as described in the Continuous Disclosure Documents;
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(ii)
|
the Company and the Subsidiaries have good and marketable title to all real property and good and marketable title to all personal property owned by them, in each case free and clear of Encumbrances (except such as do not (individually or in the aggregate) materially affect the value of such property or materially interfere with the use made or proposed to be made of such property by the Company and the Subsidiaries); and any real property and buildings to be held under lease or sublease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material to, and do not materially interfere with, the use made and proposed to be made of such property and buildings by the Company and the Subsidiaries; and
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(iii)
|
none of the Company nor, to the knowledge of the Company, the Subsidiaries have received any notice of any claim adverse to its ownership of any real or personal property or of any claim against the continued possession of any real property, whether owned or held under lease or sublease by the Company or the Subsidiaries.
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(u)
|
Mining Claims. All interests in material mining claims, concessions, exploitation or extraction rights or similar rights (“Mining Claims”) that are held by the Company or any of the Subsidiaries are in good standing, are valid and enforceable, are free and clear of any material Encumbrances and no royalty is payable in respect of any of them, except as disclosed in the Continuous Disclosure Documents. Except as disclosed in the Continuous Disclosure Documents, no other material property rights are necessary for the conduct of the Company’s business as currently conducted and there are no material restrictions on the ability of the Company and the Subsidiaries to use, transfer or otherwise exploit any such property rights. The Mining Claims of the Company or the Subsidiaries cover the properties required by the Company for the purposes described in the Continuous Disclosure Documents and no other property rights are necessary for the conduct of the Company’s business as currently conducted. No dispute between the Company or the Subsidiaries and any local, native or indigenous group exists or to the knowledge of the Company is threatened or imminent with respect to the Brucejack Property or the Company’s exploration activities that could reasonably be expected to have a Material Adverse Effect.
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(v)
|
Mineral Reserve and Resource Disclosure. The information in the Continuous Disclosure Documents relating to estimates by the Company of the proven and probable reserves and measured, indicated and inferred resources associated with the Brucejack Property has been prepared in all material respects by a “qualified person” in accordance with NI 43-101. The Company believes that all of the assumptions underlying such reserve and resource estimates are reasonable and appropriate and that the projected production and operating results relating to the Brucejack Property and summarized in the Continuous Disclosure Documents are achievable by the Company.
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(w)
|
Technical Information. The Company has filed with the Securities Regulators all technical reports required to be filed by it pursuant to NI 43-101.
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(x)
|
Compliance with Environmental and Health Laws. There has been no storage, generation, transportation, handling, use, treatment, disposal, discharge, emission, contamination, release or other activity involving any kind of hazardous, toxic or other wastes, pollutants, contaminants, petroleum products or other hazardous or toxic substances, chemicals or materials (“Hazardous Substances”) by, due to, on behalf of, or caused by the Company or the Subsidiaries (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company is or may be liable) upon any property now or previously owned, operated, used or leased by the Company or any of the Subsidiaries, or upon any other property, which would be a violation of or give rise to any liability under any applicable law, rule, regulation, order, judgment, decree or permit, common law provision or other legally binding standard relating to pollution or protection of human health and the environment of any international, federal, provincial or municipal jurisdiction (“Environmental Law”), except for violations and liabilities which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. There has been no disposal, discharge, emission contamination or other release of any kind at, onto or from any such property or into the environment surrounding any such property of any Hazardous Substances with respect to which the Company has knowledge, except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There is no pending or, to the best of the Company’s knowledge, threatened administrative, regulatory or judicial action, claim or notice of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of the Subsidiaries, of any international, federal, provincial or municipal jurisdiction, except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No property of the Company or any of the Subsidiaries is subject to any Encumbrance under any Environmental Law. None of the Company nor any of the Subsidiaries is subject to any order, decree, agreement or other individualized legal requirement related to any Environmental Law, which, in any case (individually or in the aggregate), could reasonably be expected to have a Material Adverse Effect.
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(y)
|
Permits. The Company and the Subsidiaries hold all permits, by-laws, licences, waivers, exemptions, consents, certificates, registrations, Authorizations, approvals, rights, rights of way and entitlements and the like (including as required under Environmental Law) which are required from any governmental or regulatory authority or any other person necessary to conduct its business and activities as currently conducted, the lack of which would have a Material Adverse Effect on the Company and the Subsidiaries (taken together as a whole after the Closing Time) and all such permits, by-laws, licences, waivers, exemptions, consents, certificates, registrations, Authorizations, approvals, rights, rights of way and entitlements and the like are in full force and effect in all material respects and will be in full force and effect in all material respects at the Closing Time, and with no default thereunder.
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(z)
|
Compliance with other Laws. Each of the Company and the Subsidiaries has conducted and is conducting its activities or business in material compliance with all applicable laws, rules and regulations, including without limitation those of the country, province and municipality in which such entity carries on business or conducts its activities.
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(aa)
|
No Claims. Except as disclosed in the Continuous Disclosure Documents there is no claim, action, suit, proceeding or investigation (whether or not purportedly on behalf of the Company) commenced or, to the knowledge of the Company, threatened against, or affecting the Company or the Subsidiaries or any of their respective properties, or to which the Company or the Subsidiaries is a party or to which any property of the Company or the Subsidiaries (whether currently owned or to be acquired as a result of the completion of the transactions contemplated in the Continuous Disclosure Documents) is subject, at law or in equity, or before or by any federal, provincial, state, municipal or other governmental or regulatory department, commission, board or agency, domestic or foreign, which is, or could reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect on, or which questions the validity of any action taken or to be taken by the Company pursuant to or in connection with, this Agreement or any other transaction or agreement contemplated in the Continuous Disclosure Documents.
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|
(bb)
|
No Cease Trade Orders. No order, ruling or determination having the effect of suspending the sale or ceasing the trading of the common shares or any other securities of the Company has been issued to the Company or made by any Securities Regulator or exchange or any other regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the best of the knowledge, information and belief of the Company are contemplated or threatened by any such authority or under any Securities Laws.
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|
(cc)
|
Reporting Issuer and Compliance with Securities Laws. The Company is a reporting issuer or the equivalent thereof, in good standing in each Reporting Jurisdiction.
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(dd)
|
Insurance. The Company and the Subsidiaries maintain insurance in such amounts and covering such risks as the Company reasonably considers adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries, all of which insurance is in full force and effect, except where the failure to maintain such insurance could not reasonably be expected to have a Material Adverse Effect. There are no material claims by the Company or the Subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause. The Company has no reason to believe that it will be unable to renew its existing insurance as and when such coverage expires or will be able to obtain replacement insurance adequate for the conduct of the business and the value of its properties at a cost that would not have a Material Adverse Effect.
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|
(ee)
|
Material Transactions. Except as disclosed in the Continuous Disclosure Documents, none of the directors, officers or employees of the Company or the Subsidiaries, any known holder or proposed holder of more than 10% of any class of shares of the Company, or any known Associate or Affiliate of any of the foregoing persons or companies has any material interest, direct or indirect, in any material transaction involving the Company or the Subsidiaries which, as the case may be, materially affected, is material to or will materially affect the Company or the Subsidiaries.
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(ff)
|
Brokerage Fees. Other than fees payable to Sprott Private Wealth LP or as otherwise disclosed to the Investor no person is acting or purporting to act at the request of the Company, who is entitled to any brokerage or finder’s fees by the Company in connection with the transactions contemplated by this Agreement.
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(gg)
|
No Taxes. There are no sales, goods and services, harmonized sales, use or transfer taxes or other similar taxes, fees or charges under Canadian or U.S. federal law or the laws of any state, province, territory or any political subdivision thereof, required to be paid by the Company in connection with the execution and delivery of this Agreement or the issuance of the Subscription Shares hereunder. No stamp duty, registration or documentary taxes, duties or similar charges are payable under the federal laws of Canada or the laws of any province or territory in connection with the sale and delivery to the Investor of the Subscription Shares or the authorization, execution, delivery and performance of this Agreement.
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|
(hh)
|
No Corrupt Practices. None of the Company or the Subsidiaries or any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or the Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) or the Corruption of Foreign Public Officials Act (Canada) (the “CFPOA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or the CFPOA and each of the Company and the Subsidiaries have conducted their businesses in compliance with the FCPA and the CFPOA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
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|
(ii)
|
Material Contracts. All contracts, agreements indentures, leases, policies, instruments and licenses of the Company and the Subsidiaries that are material to the Company and the Subsidiaries have been disclosed in the Continuous Disclosure Documents (“Material Contracts”) and there are no amendments to such contracts that have been, are proposed to be, or are required to be, made and all Material Contracts that are required to be filed on www.sedar.com pursuant to applicable securities laws have been so filed.
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3.2
|
Representations and Warranties of the Investor
|
|
(a)
|
Organization. It is a limited liability company validly existing under the British Virgin Islands, with full power, authority and legal capacity to own or to hold the Subscription Shares and to complete the transactions to be completed by it as contemplated in this Agreement. The Investor is a wholly-owned subsidiary of Gold Mountains (H.K.) International Mining Company Limited, which company is a wholly-owned subsidiary of the Parent Company.
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|
(b)
|
Authorization. This Agreement has been duly authorized by all requisite action on its part, and upon execution and delivery of the same, shall be enforceable against it in accordance with its respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency and other laws affecting the rights of creditors generally and except that equitable remedies may be granted only in the discretion of a court of competent jurisdiction.
|
|
(c)
|
No Violation. The entering into of this Agreement will not result in a violation of any of the terms and provisions of any law applicable to the Investor or of any agreement to which it is a party or by which it may be bound.
|
|
(d)
|
Residency. It is resident in the jurisdiction set out on the first page of this Agreement.
|
|
(e)
|
Accredited Investor. It is an “accredited investor” within the meaning of NI 45-106 and it is purchasing the Subscription Shares as principal.
|
|
(f)
|
No Offering Document. It has not received any offering document or disclosure document relating to the Subscription Shares.
|
|
(g)
|
Limited Remedies and Rights. The Investor acknowledges that there are risks associated with the purchase of an investment in the Subscription Shares, and the Investor is knowledgeable, sophisticated and experienced in business and financial matters and is capable of evaluating the merits and risks of an investment in the Subscription Shares, fully understands the restrictions on resale of the Subscription Shares, and is able to bear the economic risk of an investment in the Subscription Shares.
|
|
(h)
|
Regulatory or Third Party Consents or Approvals. No consent, approval, Order or Authorization of, or declaration of filing with, any Governmental Entity or any other third party is required to be obtained by the Investor in connection with the consummation of the transactions contemplated by this Agreement except for the PRC Approvals and such other consents, approvals, Orders or Authorizations, or declarations of filings, as to which the failure to obtain or make would not, individually or the in aggregate, prevent or materially delay the consummation of the transactions contemplated by this Agreement.
|
|
(i)
|
Filings. If required by Securities Laws or the Exchanges, the Investor will execute, deliver and file or assist the Company in filing such reports, undertakings and other documents with respect to the purchase and sale of the Subscription Shares as may be required by any securities commission, the Exchanges or other Governmental Entity.
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|
(j)
|
Collection of Personal Information. That the Investor:
|
|
(i)
|
has been notified by the Company that the Company is required to provide information (“personal information”) pertaining to the Investor and acknowledges and consents to the Company retaining the personal information for as long as permitted or required by applicable law. The Investor further acknowledges and consents to the Company delivering to the regulatory authorities in the Reporting Jurisdictions any personal information provided by the Investor respecting itself which is required to be provided in satisfaction of the Company’s obligations pursuant to Securities Laws including the information required by Form 45-106F6 – British Columbia Report of Exempt Distribution; and
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|
(ii)
|
acknowledges that its name and other specified information, including the number of Subscription Shares, may be disclosed to (A) other Canadian securities regulatory authorities and may become available to the public in accordance with the requirements of applicable Laws and (B) authorities pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada). The Investor consents to the disclosure of that information.
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|
(k)
|
Canadian Legend. The Investor acknowledges that the certificate representing the Subscription Shares will bear the following legends:
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|
(l)
|
U.S. Securities Laws. The Investor is not a U.S. Person.
|
3.3
|
Survival of Representations and Warranties
|
3.4
|
Material Changes
|
4.1
|
Board Representation
|
|
(a)
|
the Investor shall be entitled to designate one individual (the “Investor’s Nominee”) to be nominated and, if elected, to serve as a member of the Board for a term expiring not earlier than the Company’s next annual meeting of Shareholders at which directors of the Company are to be elected provided that such Investor’s Nominee consents in writing to serve as a director and is eligible under the Act to serve as a director;
|
|
(b)
|
the Company shall take all steps as may be necessary to appoint the Investor’s Nominee to the Board as of the Closing Time;
|
|
(c)
|
at the first annual meeting of Shareholders following the end of the term of the Investor’s Nominee, at which directors of the Company are to be elected, and at each meeting of Shareholders thereafter at which directors are to be elected, the Company shall cause the Investor’s Nominee to be included in the slate of nominees proposed by the Company to the Shareholders for election as directors;
|
|
(d)
|
the Company shall use all reasonable efforts to cause the election of the Investor’s Nominee, including soliciting proxies in favour of the election of the Investor’s Nominee in the event the Company intends to solicit any such proxies in connection with a meeting of Shareholders;
|
|
(e)
|
the Company shall notify the Investor in writing immediately upon determining the date of any meeting of the Shareholders at which directors of the Company are to be elected and the Investor shall advise the Company and the Board of the name of the Investor’s Nominee within 10 Business Days after receiving such notice;
|
|
(f)
|
if the Investor does not advise the Company and the Board of the Investor’s Nominee within the time set forth in Section 4.1(e), then the Investor will be deemed to have designated its incumbent nominee for nomination for election at the relevant meeting of the Shareholders;
|
|
(g)
|
if the Investor’s Nominee ceases to hold office as a director of the Company for any reason, the Investor shall be entitled to nominate an individual to replace him or her and the Company shall promptly take all steps as may be necessary to appoint such individual to the Board to replace the Investor’s Nominee who has ceased to hold office;
|
|
(h)
|
the Investor will provide the Board with reasonable notice of the person it proposes to nominate to the Board, and the Investor will give due consideration to the view of the independent members of the Board as to whether such person is an appropriate addition to the Board given his or her skill set. However, the Company shall not be entitled to veto the Investor’s Nominee unless such Investor’s Nominee has previously been removed by a resolution of the Shareholders or such Investor Nominee is a director who retired by rotation and was not re-elected by the Shareholders;
|
|
(i)
|
so long as the Investor’s Nominee serves as a member of the Board, such Investor’s Nominee shall be eligible to serve on any committee of the Board provided that such Investor’s Nominee satisfies the eligibility criteria for such committee and the Board has approved, and has received regulatory approval (if required by applicable Law), of the Investor’s Nominee serving as a member of such committee; and
|
|
(j)
|
the Investor acknowledges that any appointment to the Company’s Board must be ratified annually by a shareholder vote at the Company’s annual general or special meetings of shareholders.
|
4.2
|
Participation Rights
|
|
(a)
|
for the purpose of raising finance (an “Equity Financing”), including without limitation, convertible debt securities (collectively, “Equity Securities”) directly or indirectly, for cash:
|
|
(i)
|
the Company shall deliver a notice to the Investor in writing as soon as possible after the public announcement of the Equity Financing, but in any event: (i) on the date on which the Company files a preliminary prospectus, registration statement or other offering document in connection with an Equity Financing that constitutes a public offering of the Shares and (ii) at least fifteen (15) Business Days prior to the proposed closing date of the Equity Financing (the “Equity Financing Notice”), specifying: (A) the total number of Outstanding Equity Securities; (B) the total number of Equity Securities which are proposed to be offered for sale; (C) the rights, privileges, restrictions, terms and conditions of the Equity Securities proposed to be offered for sale; (D) the consideration for which the Equity Securities are proposed to be offered for sale; and (E) the proposed closing date of the Equity Financing. If, at the date of the Equity Financing Notice, any of the above noted information is not known to the Company, the Company shall provide such information to the Investor as soon as possible upon such information being ascertained;
|
|
(ii)
|
subject to the receipt of all required approvals of a Governmental Entity and compliance with applicable Laws, the Investor shall have the right (the “Participation Right”) to subscribe for and purchase such number of Equity Securities that the Company proposes to offer for sale as described in the Equity Financing Notice as would result in the Investor and its Affiliates collectively maintaining, following the completion of the Equity Financing, the Investor’s Percentage held immediately prior to the first public announcement of the proposed Equity Financing, for the consideration and on the same terms and conditions as offered to the other potential investors under the Equity Financing all as set forth in the Equity Financing Notice;
|
|
(iii)
|
if the Investor wishes to exercise its Participation Right in respect of a particular Equity Financing, the Investor shall give written notice to the Company (the “Exercise Notice”) of the exercise of such right and of the number of Equity Securities the Investor wishes to purchase within fifteen (15) Business Days after the Investor’s receipt of an Equity Financing Notice (the “Participation Period”), failing which the Investor will not be entitled to exercise the Participation Right in respect of such Equity Financing. Notwithstanding the foregoing, in the event that the total number of Equity Securities which are being offered changes after delivery of the Exercise Notice but prior to closing of the offering other than pursuant to the exercise of existing pre-emptive rights, the Investor will be given the opportunity to amend its Exercise Notice;
|
|
(iv)
|
the Investor agrees that if the Company decides to complete an Equity Financing during the Participation Period, it shall be entitled to do so, provided that if during the Participation Period the Investor decides to participate in the Equity Financing, the Company will complete a separate offering on a private placement basis with the Investor, subject to (i) obtaining all the required approvals of a Governmental Entity and (ii) compliance with applicable Laws, within fifteen (15) Business Days of the completion of the Equity Financing or as soon as reasonably practicable thereafter, as would result in the Investor and its affiliates collectively maintaining the Investor’s Percentage held immediately prior to the first public announcement of the proposed Equity Financing, on terms no less favourable as those provided to investors under the Equity Financing (other than the application of any applicable statutory hold periods);
|
|
(v)
|
where such Equity Financing is pursuant to a prospectus offering, the Company shall use commercially reasonable efforts to include the Investor’s pro rata share entitlement for sale as part of such prospectus offering, provided however that if the Investor’s pro rata share is not included in such prospectus offering, the Company shall use commercially reasonable efforts to provide the Investor with the opportunity to subscribe for such Common Shares on a private placement basis within fifteen (15) Business Days or as soon as reasonably possible thereafter following the closing of the prospectus offering. Notwithstanding the foregoing, any Equity Securities subscribed for by the Investor in the case of a public offering that is a “bought deal” shall be issued on a private placement basis; and
|
|
(vi)
|
to the extent any Equity Financing involves the issuance of Common Shares to be issued as “flow-through shares”, as defined in subsection 66(15) of the Tax Act (the “Flow-Through Shares”), at a price per Flow-Through Share that reflects the premium associated with a flow-through designation, if the Investor decides to participate in such Flow-Through Share offering, the Company agrees to negotiate, in good faith, the price at which such Flow-Through Shares will be issued to the Investor, taking into consideration that any benefits received by a purchaser of Flow-Through Shares will not be received by the Investor;
|
|
(b)
|
in connection with a Non-Cash Transaction:
|
|
(i)
|
the Company shall deliver to a notice to the Investor in writing as soon as possible prior to the public announcement of the Non-Cash Transaction, but in any event at least fifteen (15) Business Days prior to the proposed closing date of the Non-Cash Transaction specifying: (A) the total number of Outstanding Equity Securities; (B) the total number of Equity Securities which are proposed to be offered for sale in connection with the Non-Cash Transaction; (C) the rights, privileges, restrictions, terms and conditions of the Equity Securities which are proposed to be offered for sale in connection with the Non-Cash Transaction; (D) the consideration for which the Equity Securities are proposed to be offered for sale in the Non-Cash Transaction; and (E) the proposed closing date of the Non-Cash Transaction;
|
|
(ii)
|
for the purposes of the next Equity Financing following the Non-Cash Transaction, the Investor shall be entitled to subscribe for such number of Equity Securities, on terms no less favourable to the Investor than the terms offered to other potential purchasers under such Equity Financing, as would result in the Investor and its Affiliates collectively maintaining, following the completion of the Equity Financing, Investor’s Percentage held by them immediately prior to the closing of the Non-Cash Transaction; and
|
|
(iii)
|
as a condition of disclosure to the Investor of non-public information, as contemplated in Section 4.2(b)(i), the Investor agrees to execute a reasonable confidentiality provision in respect of such disclosure.
|
|
(i)
|
pursuant to Convertible Securities existing as of the date of this Agreement, including pursuant to existing and outstanding Common Share purchase warrants;
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|
(ii)
|
under any equity compensation plan in respect of the directors, officers or employees of the Company; or
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|
(iii)
|
pursuant to a rights offering by the Company, including any securities issued on exercise of such rights.
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4.3
|
Information Rights
|
|
(a)
|
interim, unaudited financial statements on or before the 60th day after the end of each of the Company’s completed interim periods; and
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|
(b)
|
audited, comparative annual financial statements on or before the 90th day after the end of each of the Company’s completed financial years.
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4.4
|
Listing of Common Shares
|
4.5
|
Actions to be Taken by Company
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|
(a)
|
do all such acts and things necessary to ensure that all of the representations and warranties of the Company contained in this Agreement or any certificates or documents delivered by it pursuant to this Agreement remain true and correct in all material respects (except those representations and warranties which are qualified by materiality which shall be true and correct in all respects) and not do any such act or thing that would render any representation or warranty of the Company contained in this Agreement or any certificates or documents delivered by it pursuant to this Agreement materially untrue or incorrect;
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|
(b)
|
permit the Investor and their legal counsel to (i) participate fully in the preparation of any documents relating to this Agreement and the transactions contemplated herein; and (ii) to conduct such full and comprehensive review of the Company’s business, capital, operations, customers, suppliers and principals, as the Investor, in their sole discretion, considers reasonably necessary;
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|
(c)
|
ensure that the issue and sale of the Subscription Shares will fully comply, in all material respects, with the requirements of Securities Laws;
|
|
(d)
|
will immediately send to the Investor and its legal counsel copies of all correspondence and filings to and correspondence from the Securities Regulators or the Exchanges relating to the transactions contemplated by this Agreement; and
|
|
(e)
|
within 10 days of the Closing, will file with the Securities Regulators any reports required to be filed by Securities Laws, including under NI 45-106, in connection with this Agreement and the transactions contemplated by this Agreement in the required form, and will provide the Investor’s legal counsel with copies of such reports.
|
5.1
|
Closing
|
5.2
|
Company Closing Deliveries and Conditions for Acceptance
|
|
(a)
|
Representations; Covenants.
|
|
(i)
|
Each of the representations and warranties of the Company contained in this Agreement shall be accurate in all material respects as and when made and at and as of the Closing Time as though such representations and warranties were made at and as of the Closing Time.
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|
(ii)
|
All covenants, agreements and conditions of the Company contained in this Agreement to be completed prior to the Closing Time shall have been performed or completed in all material respects by the Company.
|
|
(b)
|
Delivery of Opinions.
|
|
(i)
|
The Investor shall have received at the Closing Time a favourable legal opinion dated the Closing Date, in form and substance satisfactory to the Investor, from Canadian counsel to the Company, addressed to the Investor, as to the laws of Canada and British Columbia which counsel may rely upon as to matters of fact on certificates of the auditors of the Company, the Transfer Agent, government officials, public and stock exchange officials and officers of the Company and the Subsidiaries, with respect to the following matters, assuming completion of the Closing:
|
|
(A)
|
as to the valid existence and good standing of each of the Company and the Subsidiaries under the laws of their respective jurisdiction of organization or incorporation, as applicable;
|
|
(B)
|
as to the authorized and issued capital of each of the Company and the Subsidiaries;
|
|
(C)
|
that the Company is the registered owner of all of the issued and outstanding common shares or other securities of the Subsidiaries;
|
|
(D)
|
that each of the Company and the Subsidiaries have all requisite corporate power and capacity including under the laws of its respective jurisdiction of incorporation to (i) carry on its business as presently carried on (as applicable); (ii) own its property; (iii) in the case of the Company solely, issue the Subscription Shares; and (iv) in the case of the Company solely, carry out the transaction contemplated hereby;
|
|
(E)
|
that all necessary corporate action has been taken by the Company to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
|
|
(F)
|
that the Subscription Shares have been duly authorized and are validly issued and outstanding as fully paid and non-assessable shares;
|
|
(G)
|
that the execution and delivery of this Agreement by the Company, the fulfilment of the terms of this Agreement, the issue and sale of the Subscription Shares and, the consummation of the transactions contemplated by this Agreement, do not and will not result in a breach (whether after notice or lapse of time or both) of any current statute or regulation of the province of British Columbia, or of the terms, conditions or provisions of the constating documents of the Company or any resolutions of directors or shareholders of the Company or the Material Contracts;
|
|
(H)
|
that this Agreement has been duly authorized and executed by the Company and constitutes a legal, valid and binding obligation of the Company and is enforceable against the Company in accordance with its terms, subject to reasonable opinion qualifications;
|
|
(I)
|
that the form and terms of the certificates representing the Subscription Shares have been duly approved by the Company and meet all legal requirements under the constating documents of the Company, the Act and the rules of the TSX (if any) and have been duly approved by the Company;
|
|
(J)
|
that Computershare Investor Services Inc. at its principal offices in the cities of Vancouver and Toronto has been duly appointed as the transfer agent and registrar for the common shares of the Company, which appointment has not been revoked and amended;
|
|
(K)
|
that the Company is a reporting issuer in the provinces of British Columbia, Alberta and Ontario and is not in default of the Securities Laws of such provinces;
|
|
(L)
|
the issue and sale of the Subscription Shares by the Company to the Investor is exempt from the prospectus requirements of the securities laws in British Columbia and no prospectus will be required, no other document will be required to be filed, no proceeding will be required to be taken and no approval, permit, consent, order or Authorization of a regulatory authority will be required to be obtained by the Company under the securities laws in each of the Reporting Jurisdictions in connection with the issue and sale of the Subscription Shares in British Columbia to the Investor of such Subscription Shares other than the requirement that the Company files within 10 days from the date of issue and sale, a report of the sale prepared and executed in accordance with the securities laws in British Columbia, together with the payment of prescribed fees in connection therewith;
|
|
(M)
|
the first trade in the Subscription Shares, other than a trade which is otherwise exempt under securities laws in each of the Reporting Jurisdictions, will be a deemed distribution subject to the prospectus requirements of applicable securities laws in each of the Reporting Jurisdictions, unless certain conditions are met; and
|
|
(N)
|
the Subscription Shares have been conditionally approved for listing on the TSX subject to the filing of documents in accordance with the requirements of the TSX.
|
|
(ii)
|
The Investor shall have received at the Closing Time a favourable legal opinion dated the Closing Date based on the BC Online mineral title searches, in form and substance satisfactory to the Investor acting reasonably, from Canadian counsel to the Company, addressed to the Investor, with respect to title matters on the Brucejack Property.
|
|
(c)
|
Delivery of Certificates.
|
|
(i)
|
The Investor shall have received at the Closing Time a certificate dated the Closing Date, addressed to the Investor and signed on behalf of the Company by an officer of the Company, with respect to the constating documents of the Company, all resolutions of Directors relating to this Agreement, the incumbency and specimen signatures of signing officers of the Company.
|
|
(ii)
|
The Investor shall have received at the Closing Time a certificate of the Company dated the Closing Date, addressed to the Investor and signed on behalf of the Company by an officer of the Company, certifying for and on behalf of the Company, after having made due inquiry, that:
|
|
(A)
|
since the date of this Agreement, that (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, liabilities (absolute, accrued, contingent or otherwise), capital, operations, financial condition, properties, prospects or assets of the Company or the Subsidiaries, and (B) no transaction has been entered into by the Company which is material to the Company;
|
|
(B)
|
no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Subscription Shares, or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, after due inquiry, contemplated or threatened under any of the Securities Laws or by any other regulatory authority;
|
|
(C)
|
the Company has complied with the terms and conditions of this Agreement on its part to be complied with up to and as of the Closing Time;
|
|
(D)
|
the representations and warranties of the Company contained in this Agreement and in any certificate or other document delivered pursuant to or in connection with this Agreement are accurate in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement; and
|
|
(E)
|
such other matters as the Investor may reasonably request.
|
|
(iii)
|
The Company will deliver to the Investor certificates of good standing and/or compliance (or the equivalent), where issuable under applicable law, for the Company and the Subsidiaries, each dated within one day prior to the Closing Date.
|
|
(d)
|
evidence of the conditional acceptance of the issuance and listing of the Subscription Shares on the TSX and evidence of an application having been made to the NYSE for the approval of the listing and posting for trading of the Subscription Shares on the NYSE;
|
|
(e)
|
the Investor will have obtained PRC Approvals;
|
|
(f)
|
a certificate from the Transfer Agent: (A) as to its appointment as transfer agent and registrar of the Common Shares; and (B) as to the issued and outstanding Common Shares as at the close of business on the day prior to the date hereof;
|
|
(g)
|
a share certificate representing the Subscription Shares registered in the name of the Investor (or as the Investor may direct), duly executed and issued by the Company and registered in the share register of the Company in the name of the Investor (or as the Investor may direct); and
|
|
(h)
|
all actions required to be taken by or on behalf of the Company, including, without limitation, the passing of all requisite resolutions of the Directors and all requisite filings with any securities regulatory authority will have occurred at or prior to the Closing Time so as to authorize and approve this Agreement, the issuance and sale of the Subscription Shares and all matters related to the foregoing.
|
5.3
|
Investor Closing Deliveries
|
|
(a)
|
Representations; Covenants.
|
|
(i)
|
Each of the representations and warranties made by the Investor herein (including representations and warranties made in any schedule attached hereto, as applicable) shall be accurate in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time.
|
|
(ii)
|
All covenants, agreements and conditions of the Investor contained in this Agreement to be completed prior to the Closing Time shall have been performed or completed in all material respects by the Investor.
|
|
(b)
|
Deliveries. The Investor shall deliver or cause to be delivered to the Company, the following:
|
|
(i)
|
payment of the aggregate Purchase Price in accordance with Section 2.2; and
|
|
(ii)
|
consent to act on the Board from the Investor’s Nominee.
|
6.1
|
Termination
|
|
(a)
|
It is understood that the Investor and the Company may at their sole discretion waive, in whole or in part, or extend the time for compliance with, any of the terms and conditions of this Agreement in their favour without prejudice to their rights in respect of any other of such terms and conditions or any other subsequent breach or non-compliance; provided, however, that to be binding on the Investor or the Company as applicable any such waiver or extension must be in writing.
|
|
(b)
|
This Agreement may be terminated under the following circumstances:
|
|
(i)
|
upon mutual consent of the parties;
|
|
(ii)
|
by the Investor, upon written notice to the Company, if there has been a material violation, breach or inaccuracy of any representation, warranty or covenant of the Company contained in this Agreement, which violation, breach or inaccuracy would cause any of the representations, warranties, covenants or conditions of the Company in this Agreement not to be satisfied; or
|
|
(iii)
|
by the Company, upon written notice to the Investor, if there has been a material violation, breach or inaccuracy of any representation, warranty or covenant of the Investor contained in this Agreement, which violation, breach or inaccuracy would cause any of the representations, warranties, covenants or conditions of the Investor in this Agreement not to be satisfied.
|
6.2
|
Notices
|
|
(a)
|
Any notice or other communication that is required or permitted to be given hereunder shall be in writing and shall be validly given if delivered in person (including by courier service) or transmitted by fax as follows:
|
|
(i)
|
in the case of the Investor:
|
|
(ii)
|
in the case of the Company:
|
|
(b)
|
Any such notice or other communication shall be deemed to have been given and received on the day on which it was delivered or transmitted (or, if such day is not a Business Day or if delivery or transmission is made on a Business Day after 5:00 p.m. (Vancouver time) at the place of receipt, then on the next following Business Day) or, if mailed, on the third Business Day following the date of mailing; provided, however, that if at the time of mailing or within three Business Days thereafter there is or occurs a labour dispute or other event which might reasonably be expected to disrupt the delivery of documents by mail, any notice or other communication hereunder shall be delivered or transmitted by means of recorded electronic communication as aforesaid.
|
|
(c)
|
Any party may at any time change its address for service from time to time by giving notice to the other parties in accordance with this Section 6.1.
|
6.3
|
Further Assurances
|
6.4
|
Amendments
|
6.5
|
Assignment
|
6.6
|
Successors and Assigns
|
6.7
|
No Partnership
|
6.8
|
Public Releases
|
6.9
|
Counterparts
|
PRETIUM RESOURCES INC.
|
||||
|
By:
|
“Joseph Ovsenek” | ||
Name: | Joseph Ovsenek | |||
Title: | Executive Vice President & Chief Development Officer |
XINXING GLOBAL LIMITED
|
||||
|
By:
|
“Fan Cheung Man” | ||
Name: | Fan Cheung Man | |||
Title: | Director | |||