Nouveau Monde Graphite (NMG) closes US$309.5M raise and confirms Phase-2 Matawinie Mine FID
Nouveau Monde Graphite reports completion of a previously announced US$309.5 million equity financing package, allowing it to confirm the final investment decision for its Phase-2 Matawinie Mine.
The package includes a private placement of approximately US$213,160,000, where Canada Growth Fund, Investissement Québec and ENI subscribed for 44,452,460, 33,351,853 and 38,043,478 common shares respectively at US$1.84 per share. In a concurrent bought deal, 52,440,000 subscription receipts issued at the same price for gross proceeds of US$96,489,600 were exchanged into an equal number of common shares and the escrowed funds were released to NMG.
Supported by a previously announced senior project debt facilities commitment of US$335 million, NMG plans to use net proceeds from the offerings and debt facilities to fund design, engineering and construction of the Phase-2 Matawinie Mine and for corporate expenses and working capital. The filing also includes an investor rights agreement and a registration rights agreement granting ENI governance, pre-emptive and registration rights over its 38,043,478-share investment.
Positive
- Major financing and project go-ahead: Completion of a US$309.5 million equity package, alongside a US$335 million senior debt commitment, allows NMG to confirm the final investment decision for the Phase-2 Matawinie Mine and earmark substantial funds for its design, engineering and construction.
Negative
- None.
Insights
NMG secures large equity/debt package and greenlights Phase-2 Matawinie Mine.
Nouveau Monde Graphite has closed a significant equity financing totaling US$309.5 million, anchored by a private placement of about US$213.16 million and a concurrent bought deal of US$96.4896 million. This funding underpins the final investment decision for the Phase-2 Matawinie Mine.
The equity is complemented by previously announced senior project debt facilities with a US$335 million commitment, creating a sizable capital stack for mine development. Strategic investors include Canada Growth Fund, the Government of Québec via Investissement Québec, and ENI, each taking substantial share allocations at US$1.84 per share.
An investor rights agreement and a detailed registration rights agreement give ENI governance, pre-emptive and registration rights over its 38,043,478 shares, including demand, piggyback and shelf registration options. Future execution hinges on delivering the Phase-2 Matawinie Mine within the planned design and construction framework using these combined equity and debt resources.
Key Figures
Key Terms
final investment decision financial
Private Placement financial
Subscription Receipts financial
Demand Registration Rights financial
Piggyback Registration financial
Shelf Registration financial
AI-generated analysis. How Rhea-AI works. Not financial advice.
FAQ
What financing did Nouveau Monde Graphite (NMG) complete in this 6-K?
Who invested in NMG’s US$213.16 million private placement and at what price?
What happened to NMG’s subscription receipts issued in April 2026?
How does this financing affect the Phase-2 Matawinie Mine project for NMG?
How will NMG use the proceeds from the offerings and facilities?
What rights does ENI receive under the new agreements with NMG?
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For
the month of May 2026
Commission File Number: 001-40416
Nouveau
Monde Graphite Inc.
(Translation of registrant’s name into English)
481 rue Brassard
Saint-Michel-des-Saints, Quebec
Canada J0K 3B0
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ¨ Form 40-F x
INCORPORATION BY REFERENCE
Exhibit 99.1 of this Form 6-K is hereby filed and incorporated by reference into the registrant’s Registration Statement on Form F-10 (File No. 333-291778).
DOCUMENTS TO BE FILED AS PART OF THIS FORM 6-K
| 99.1 | Material Change Report dated May 20, 2026 |
| 99.2 | Investor Rights Agreement dated May 15, 2026 |
| 99.3 | Registration Rights Agreement dated May 15, 2026 |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, there unto duly authorized.
| Nouveau Monde Graphite Inc. (Registrant) | |
| Date: May 26, 2026 | /s/ Josée Gagnon |
| Josée Gagnon | |
| Vice President, Legal Affairs & Corporate Secretary |
Exhibit 99.1
FORM 51-102F3
Material Change Report
| 1. | Name and Address of the Corporation |
NOUVEAU MONDE GRAPHITE INC. (“NMG”
or the “Company”)
481 Rue Brassard
Saint-Michel-des-Saints, QC J0K 3B0
| 2. | Date of Material Change |
May 15, 2026
| 3. | News Release |
A news release relating to the material change described herein was disseminated through the facilities of Business Wire and subsequently filed on SEDAR+ on May 15, 2026.
| 4. | Summary of Material Change |
On May 15, 2026, the Company announced the completion of its previously announced US$309.5 million equity financing package, confirming the final investment decision (“FID”) for the Phase-2 Matawinie Mine.
| 5. | Full Description of Material Change |
On May 15, 2026, the Company announced the closing of its previously announced private placement with Canada Growth Fund Inc. (“CGF”), the Government of Québec via Investissement Québec (“IQ”) and ENI S.p.A. (“ENI”), representing aggregate gross proceeds of approximately US$213,160,000 (the “Private Placement”). Pursuant to the Private Placement, each of CGF, IQ and ENI subscribed for 44,452,460 common shares of the Company (the “Common Shares”), 33,351,853 Common Shares and 38,043,478 Common Shares, respectively, at a price of US$1.84 per Common Share (C$2.55 per Common Share based on the Bank of Canada exchange rate as of April 8, 2026) (the “Offering Price”). The closing of the Private Placement was conditional upon, among other things, the receipt of various shareholder approvals in accordance with applicable rules of the Toronto Stock Exchange (the “TSX”) and Regulation 61-101 respecting Protection of Minority Security Holders in Special Transactions (“Regulation 61-101”), which were obtained on May 13, 2026.
The Private Placement took place as part of the financing package for the phased development of the commercial operations of the Matawinie Mine (“Phase-2 Matawinie Mine”).
Exchange of the Subscription Receipts
NMG also announced that, upon the closing of the Private Placement, the escrow release conditions (the “Escrow Release Conditions”) set forth in the subscription receipt agreement entered into between NMG, TSX Trust Company (the “Subscription Receipt Agent”), BMO Capital Markets (“BMO”) and National Bank Capital Markets (“NBCM” and, together with BMO, the “Bookrunners”) in connection with the previously announced concurrent bought deal public offering (the “Offering”), had been satisfied.
Therefore, immediately following the closing of the Private Placement, the Company delivered an escrow release notice and direction to the Subscription Receipt Agent and the Bookrunners, acting on behalf of a syndicate of underwriters (the “Underwriters”), certifying that the Escrow Release Conditions had been satisfied. In accordance with the escrow release notice and direction, the gross proceeds of the Offering (less the remaining 50% of the Underwriters’ fee and the expenses and costs relating to the Offering) held in escrow by the Subscription Receipt Agent were released to the Company. Consequently, the 52,440,000 subscription receipts of the Company (TSX: NOU.R.U) issued on April 16, 2026 at the Offering Price, for aggregate gross proceeds of US$96,489,600, were automatically exchanged for 52,440,000 Common Shares, without payment of additional consideration and without any further action on the part of the holders.
Confirmation of Matawinie Mine FID and Use of Proceeds
With the closing of the Private Placement and the release of the Offering proceeds, and on the basis of the previously announced senior project debt facilities of US$335 million commitment (the “Facilities”), NMG confirms the FID for the Phase-2 Matawinie Mine. The Company intends to use the net proceeds from the Offering and the Private Placement, as well as the funds under the Facilities, when available, for: (i) funding the design, engineering and construction of the Phase-2 Matawinie Mine; and (ii) general and administrative expenses and general working capital of the Company.
| 6. | Reliance on subsection 7.1(2) of Regulation 51-102 |
Not applicable.
| 7. | Omitted Information |
Not applicable.
| 8. | Executive Officer |
For all additional information, please contact:
Me Josée Gagnon
Chief Legal Officer
Telephone: (450) 757-8905 #405
| 9. | Date of Report |
May 20, 2026
Cautionary Note Regarding Forward-Looking Information
This material change report contains “forward-looking information” and “forward-looking statements” within the meaning of applicable securities legislation (collectively, “forward-looking statements”), including, but not limited to, statements relating to future events or future financial or operating performance of the Company, and reflects management’s expectations and assumptions regarding the Company’s growth, results, performance and business prospects and opportunities. Such forward-looking statements reflect management’s current beliefs and are based on information currently available to it. In some cases, forward-looking statements can be identified by words such as “may”, “would”, “could”, “will”, “should”, “expect”, “intend”, “potential” or the negative of these terms or other similar expressions concerning matters that are not historical facts. These forward-looking statements include, but are not limited to, the execution of definitive agreements in respect of the Facilities on the terms and conditions described in the commitment letter or at all, the intended use of proceeds from the Private Placement, the Offering and the Facilities, the ability to execute the construction and the commissioning as planned and in accordance with the execution plan and strategy, the ability of all contractors and suppliers of the Company to deliver in accordance with their commitments, the expected results of the initiatives described in this material change report, and those statements which are discussed under the “About Nouveau Monde Graphite” section and elsewhere in this material change report which essentially describe the Company’s outlook and objectives.
Forward-looking statements are based upon a number of estimates and assumptions that, while considered reasonable by the Company as of the time of such statements, are inherently subject to significant business, economic and competitive uncertainties and contingencies that may cause the actual results, level of activity, performance or achievement of the Company to be materially different from those expressed or implied by such forward-looking statements. These estimates and assumptions are not guarantees of future performance and may prove to be incorrect. Moreover, these forward-looking statements are based upon various underlying factors and assumptions, including the ability to execute the construction and the commissioning as planned and in accordance with the execution plan and strategy, and are not guarantees of future performance.
Forward-looking statements are subject to known or unknown risks and uncertainties that may cause actual results to differ materially from those anticipated or implied in the forward-looking statements. Risk factors that could cause actual results or events to differ materially from current expectations include, among others, cash flow and capital structure risks and general business risks. A further description of risks and uncertainties can be found in NMG’s Annual Information Form dated March 25, 2026, including in the section thereof captioned “Risk Factors”, which is available on SEDAR+ at www.sedarplus.ca and on EDGAR at www.sec.gov. Unpredictable or unknown factors not discussed in this Cautionary Note could also have material adverse effects on forward-looking statements.
Many of these uncertainties and contingencies can directly or indirectly affect, and could cause, actual results to differ materially from those expressed or implied in any forward-looking statements. There can be no assurance that forward-looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements. Forward-looking statements are provided for the purpose of providing information about management’s expectations and plans relating to the future. The Company disclaims any intention or obligation to update or revise any forward-looking statements or to explain any material difference between subsequent actual events and such forward-looking statements, except to the extent required by applicable law.
Further information regarding the Company is available in the SEDAR+ database (www.sedarplus.ca), and for United States readers on EDGAR (www.sec.gov), and on the Company’s website at: www.NMG.com.
Exhibit 99.2
INVESTOR RIGHTS AGREEMENT
THIS Investor Rights Agreement (this “Agreement”) is made and entered into this May 15, 2026, by and between Nouveau Monde Graphite Inc., a corporation governed by the Act (as defined below) (“NMG” or the “Corporation”), and ENI International B.V., a private limited liability company governed by the laws of the Netherlands (“ENI”) (NMG and ENI being hereinafter collectively called the “Parties”, and individually, a “Party”), in connection with the sale and issuance by NMG of 38,043,478 Common Shares (as defined below) to ENI pursuant to the terms and subject to the conditions of the subscription agreement dated April 9, 2026 by and among NMG and ENI (the “Subscription Agreement”).
As a material inducement of ENI to purchase the Common Shares, NMG hereby agrees that, in addition to any and all other rights provided to ENI as a Shareholder (as defined below) pursuant to the Subscription Agreement and any other agreements entered into by NMG and ENI in connection with ENI’s investment in the Common Shares, ENI will be entitled to the following contractual rights.
| 1. | Definitions |
For the purposes of this Agreement, unless the context otherwise requires, the following terms shall have the respective meanings set out below and grammatical variations of such terms shall have corresponding meanings:
| (a) | “5% Threshold” means that ENI and its Affiliates own, directly or indirectly, 5% or more of the issued and outstanding Common Shares on the relevant date, excluding for purposes of this calculation any Pending Top-Up Securities and, for the avoidance of doubt, any voting or equity shares of NMG issuable upon the exercise, exchange or conversion of any Convertible Securities; |
| (b) | “10% Threshold” means that ENI and its Affiliates own, directly or indirectly, 10% or more of the issued and outstanding Common Shares on the relevant date, excluding for purposes of this calculation any Pending Top-Up Securities and, for the avoidance of doubt, any voting or equity shares of NMG issuable upon the exercise, exchange or conversion of any Convertible Securities; |
| (c) | “20% Threshold” means that ENI and its Affiliates own, directly or indirectly, 20% or more of the issued and outstanding Common Shares on the relevant date, excluding for purposes of this calculation any Pending Top-Up Securities and, for the avoidance of doubt, any voting or equity shares of NMG issuable upon the exercise, exchange or conversion of any Convertible Securities; |
| (d) | “Act” means the Canada Business Corporations Act, as amended; |
| (e) | “Additional Notice Period” shall have the meaning ascribed thereto in Section 3(c); |
| (f) | “Affiliate” (i) with reference to any Person other than ENI, shall have the meaning ascribed thereto in National Instrument 45-106 – Prospectus Exemptions (in Québec, Regulation 45-106 respecting Prospectus Exemptions); and (ii) with reference to ENI, shall mean Eni S.p.A. (as long as ENI is Controlled by Eni S.p.A.) and any Persons Controlled by Eni S.p.A. |
| (g) | “Agreement” shall have the meaning ascribed thereto in the preamble hereto, and shall include any amendment and supplement hereto and restatement hereof; |
| (h) | “Anti-Corruption Laws” means all applicable Laws related to the prevention of bribery, corruption (governmental or commercial), kickbacks, money laundering, or similar unlawful or unethical conduct including the Corruption of Foreign Public Officials Act (Canada), the U.S. Foreign Corrupt Practices Act of 1977, and the U.K. Bribery Act, in each case as amended; |
| (i) | “Anti-Money Laundering Laws” means the U.S. Patriot Act, the U.S. Money Laundering Control Act of 1986, the U.S. Bank Secrecy Act, the Proceeds of Crime (Money Laundering Act) and Terrorism Financing Act (Canada), in each case as amended, the regulations and rules promulgated under each of the foregoing and any other applicable Laws concerning or relating to terrorism financing or money laundering of the jurisdictions in which NMG and its Subsidiaries operate; |
| (j) | “Applicable Securities Laws” means Canadian Securities Laws and U.S. Securities Laws or any of them, as the circumstances require; |
| (k) | “BIS” means the U.S. Bureau of Industry and Security; |
| (l) | “Blackout Notice” shall have the meaning ascribed thereto in Section 3(o); |
| (m) | “Blackout Period” shall have the meaning ascribed thereto in Section 3(o); |
| (n) | “Blackout Termination Notice” shall have the meaning ascribed thereto in Section 3(o); |
| (o) | “Board” means the board of directors of NMG, as constituted from time to time; |
| (p) | “Bought Deal” shall have the meaning ascribed thereto in Section 3(b); |
| (q) | “Board Materials” shall have the meaning ascribed thereto in Section 2(j); |
| (r) | “Business Day” means any day, other than (i) a Saturday, Sunday or statutory holiday in the Province of Québec, in the Netherlands or in Belgium and (ii) a day on which banks are generally closed in Montréal, Québec, in Amsterdam, the Netherlands or in Brussels, Belgium; |
| (s) | “Canadian Securities Laws” means the Securities Act (Québec) and any similar securities legislation of each of the provinces of Canada, as amended from time to time, and the respective rules, regulations, blanket orders and orders and the forms and disclosure requirements made or promulgated under such legislation, and the policies, policy statements, instruments, bulletins and notices of one or more of the securities commissions or other securities regulatory authorities in the provinces of Canada, as the same may hereafter be amended from time to time or replaced; |
2
| (t) | “Committee Materials” shall have the meaning ascribed thereto in Section 2(j); |
| (u) | “Common Shares” means common shares in the capital of NMG; |
| (v) | “Confidentiality Agreement” means the Confidentiality Agreement dated October 10, 2025 between NMG and ENI S.P.A.; |
| (w) | “Control” shall have the meaning ascribed thereto in National Instrument 45-106 – Prospectus Exemptions (in Québec, Regulation 45-106 respecting Prospectus Exemptions). The terms “Controlled” and “Controlling” shall be construed accordingly; |
| (x) | “Convertible Securities” means securities that are exercisable or exchangeable for, or convertible into, Common Shares, including options, warrants, convertible notes and convertible debentures; |
| (y) | “Director” means a member of the Board; |
| (z) | “Election Meeting” shall have the meaning ascribed thereto in Section 2(e); |
| (aa) | “ENI” shall have the meaning ascribed thereto in the preamble hereto; |
| (bb) | “ENI Nominee” shall have the meaning ascribed thereto in Section 2(b); |
| (cc) | “ENI Observer” shall have the meaning ascribed thereto in Section 2(i); |
| (dd) | “Exchange Rules” means the rules and regulations of any exchange on which the Common Shares are listed; |
| (ee) | “Exchanges” shall have the meaning ascribed thereto in Section 7(a); |
| (ff) | “Excluded Securities” shall have the meaning ascribed thereto in Section 3(h); |
| (gg) | “Exercise Notice” shall have the meaning ascribed thereto in Section 3(c); |
| (hh) | “Exercise Notice Period” shall have the meaning ascribed thereto in Section 3(c); |
| (ii) | “FEOC” means a (A) Person who is a “prohibited foreign entity” as defined in Section 7701(a)(51) of the United States Internal Revenue Code of 1986, as amended, or (B) a Person “linked to or subject to influence by hostile or non-likeminded regimes or states”, as such concept is used in the Policy Regarding Foreign Investments from State-Owned Enterprises in Critical Minerals under the Investment Canada Act, or, in each case, under any successor or similar policies promulgated by either the Canadian or United States government in respect of critical minerals policy; |
3
| (jj) | “FID” has the meaning ascribed thereto in the Subscription Agreement; |
| (kk) | “FID Equity Offering” has the meaning ascribed thereto in the Subscription Agreement; |
| (ll) | “First ENI Nominee” shall have the meaning ascribed thereto in Section 2(a); |
| (mm) | “First Nation” means the Indian, Inuit and Métis peoples of Canada; a band as defined pursuant to the Indian Act (RSC 1985, c I-5); any government or council including customary government or council established for the benefit of Indian, Inuit and Métis peoples of Canada; a corporation, trust, partnership or other unincorporated organization belonging to or established for the benefit of the Indian, Inuit or Métis peoples of Canada or in which one or more Indian, Inuit or Métis hold an interest; and also includes a third party acting on its behalf; |
| (nn) | “Government Official” means any official (elected or appointed), officer, or employee of a Governmental Entity or any department, agency or instrumentality thereof, including any employee, representative, or agent (paid or unpaid) of a state-owned or Controlled entity, public international organization, political party or organization or candidate thereof, or any person acting in an official capacity for or on behalf of any such Governmental Entity, department, agency, instrumentality, public international organization, political party, organization, or candidate; |
| (oo) | “Governmental Entity” means any domestic or foreign federal, provincial, regional, state, municipal or other government, governmental department, agency, authority or body (whether administrative, legislative, executive or otherwise), court, tribunal, commission or commissioner, bureau, minister or ministry, board or agency, or other regulatory authority, including any securities regulatory authorities and stock exchange, or any other entity, insofar as it exercises a legislative, judicial, regulatory, administrative, expropriation or taxing power or function of or pertaining to government; |
| (pp) | “Human Rights” means (A) the principles contained in applicable national and international laws and instruments, guidelines and best practices aimed at preventing human rights violations, including the United Nations Guiding Principles on Business and Human Rights, the OECD Guidelines for Multinational Enterprises and the ILO Declaration on Fundamental Principles and Rights at Work; (B) the provisions of Law concerning terms and conditions of employment (wages and salaries, hours of work, holidays, rest periods, permits, leave of absence, protection of minors of non-working age, supervision methods and accommodation, if any, offered to personnel employed in connection with the execution of contractual services); as well as (C) the national and international regulations against the trade in and trafficking of human beings, immigration regulations and residence permit requirements for citizens of third countries and Laws against forced labour; |
4
| (qq) | “Law” means (i) all laws, statutes, codes, ordinances, decrees, rules, regulations, by-laws, instruments, orders, directives, judgments, decrees, injunctions, decisions, rulings, awards or writs enacted, promulgated, issued, released, or imposed by any Governmental Entity, including Securities Laws, and (ii) any policy, practice, protocol, requirement, standard or guideline of any Governmental Entity, in each case relating or applicable to such Person, property, transaction, event or other matter; |
| (rr) | “Locked-Up Shares” means, collectively, any Common Shares (i) purchased by ENI or its Affiliates pursuant to the Subscription Agreement, (ii) purchased by ENI or its Affiliates in connection with any exercise of the Pre-Emptive Right or the Top-Up Right, in each case in accordance with the provisions of this Agreement, and (iii) issued to ENI or its Affiliates in connection with a stock dividend, stock split, recapitalization, conversion or other similar distribution with respect to, in exchange for, or in replacement of the Common Shares referred to in clauses (i) and (ii) above; |
| (ss) | “Management Information Circular” means a management information circular prepared by NMG in connection with any Election Meeting; |
| (tt) | “Market Price” shall have the meaning ascribed thereto in Section 3(i); |
| (uu) | “NI 62-104” means National Instrument – 62-104 Take-over Bids and Issuer Bids (in Québec, Regulation 62-104 respecting Take-over Bids and Issuer Bids); |
| (vv) | “NMG” or the “Corporation” shall have the meaning ascribed thereto in the preamble hereto; |
| (ww) | “Note” means the unsecured convertible note issued by NMG on November 8, 2022 to Investissement Québec, as amended or amended and restated from time to time; |
| (xx) | “NYSE” means the New York Stock Exchange; |
| (yy) | “Observer Agreement” shall have the meaning ascribed thereto in Section 2(j); |
| (zz) | “Offering” shall have the meaning ascribed thereto in Section 3(a); |
| (aaa) | “Offering Notice” shall have the meaning ascribed thereto in Section 3(b); |
| (bbb) | “Parties” and “Party” shall have the meaning ascribed thereto in the preamble hereto; |
| (ccc) | “Pending Top-Up Securities” means any Excluded Securities in respect of which the Top-Up Right remains exercisable; |
5
| (ddd) | “Person” means and includes any individual, corporation, limited partnership, general partnership, joint stock corporation, limited liability corporation, joint venture, association, corporation, trust, bank, trust corporation, pension fund, business trust, administrator, authority, entity, executor, other legal representative, sole proprietorship, syndicate, trust, trustee, unincorporated association, or other organization, whether or not a legal entity, and any Governmental Entity; |
| (eee) | “Pre-Emptive Right” shall have the meaning ascribed thereto in Section 3(a); |
| (fff) | “Pre-Emptive Right Securities” shall have the meaning ascribed thereto in Section 3(a); |
| (ggg) | “Pro Rata Interest” means on any date, the aggregate security ownership interest of ENI and its Affiliates in NMG, expressed as a percentage, equal to (i) the aggregate number of Common Shares and other voting or equity shares of NMG owned, directly or indirectly, or over which Control or direction is exercised, by ENI and its Affiliates; divided by (ii) the issued and outstanding Common Shares and other voting or equity shares of NMG. For purposes of this calculation, any voting or equity shares of NMG issuable upon the exercise or conversion of any Convertible Securities shall be excluded from this calculation and not included in the calculations of (i) and (ii) above; |
| (hhh) | “Registration Rights Agreement” means the registration rights agreement dated as of the dated hereof by and between NMG and ENI; |
| (iii) | “Sanction” means any laws or regulations concerning trade, economic or financial sanctions, export controls or trade embargoes or related restrictive measures imposed, administered or enforced from time to time by a Sanctions Authority; |
| (jjj) | “Sanctioned Person” means any Person: (i) who is a restricted or prohibited Person as designated or included in any list of designated or restricted parties under any Sanctions; (ii) a Person organized under the laws of or incorporated in (in case of an entity), or resident in (in case of an individual), a Sanctioned Territory, or which is otherwise subject to any Sanction in a Sanctioned Territory; or (iii) an entity owned or Controlled by any of the foregoing Persons in clauses (i) or (ii) hereof; |
| (kkk) | “Sanctioned Territory” means, at any time, a country or territory which is, or whose government is, the subject of Sanctions broadly prohibiting dealings with such country or territory or its government (which at the time of this Agreement includes Cuba, Democratic People’s Republic of Korea, the Islamic Republic of Iran, the Crimea, Kherson and Zaporizhzhia regions of Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic); |
| (lll) | “Sanctions Authority” means the United States government and any of its agencies (including OFAC, BIS, the U.S. State Department and the U.S. Department of Commerce), the European Union and each of its member states, the United Nations Security Council, the United Kingdom of Great Britain and Northern Ireland, the Canadian government, or any other Governmental Entity with jurisdiction over the parties to this Agreement; |
6
| (mmm) | “SEC” means the United States Securities and Exchange Commission; |
| (nnn) | “Second ENI Nominee” shall have the meaning ascribed thereto in Section 2(b); |
| (ooo) | “Shareholder” shall have the meaning ascribed thereto in Section 2(d); |
| (ppp) | “Subject Business” shall have the meaning ascribed thereto in Section 7(m)(ii); |
| (qqq) | “Subscription Agreement” shall have the meaning ascribed thereto in the preamble hereto; |
| (rrr) | “Subsidiary” shall have the meaning ascribed thereto in National Instrument 45-106 – Prospectus Exemptions (in Québec, Regulation 45-106 respecting Prospectus Exemptions); |
| (sss) | “Supplemental Exercise Notice” shall have the meaning ascribed thereto in Section 3(c); |
| (ttt) | “Supplemental Offering Notice” shall have the meaning ascribed thereto in Section 3(c); |
| (uuu) | “Top-Up Event” shall have the meaning ascribed thereto in Section 3(i); |
| (vvv) | “Top-Up Exercise Notice” shall have the meaning ascribed thereto in Section 3(j); |
| (www) | “Top-Up Notice” shall have the meaning ascribed thereto in Section 3(i); |
| (xxx) | “Top-Up Right” shall have the meaning ascribed thereto in Section 3(i); |
| (yyy) | “Top-Up Shares” shall have the meaning ascribed thereto in Section 3(i); |
| (zzz) | “TSX” means the Toronto Stock Exchange; |
| (aaaa) | “United States” or “U.S.” means the United States of America, its territories and possessions, any State of the United States and the District of Columbia; |
| (bbbb) | “U.S. Securities Laws” means all applicable federal and state securities legislation of the United States, the respective regulations, rules and orders thereunder, and all applicable rules, regulations, policy statements, notices and interpretation notes issued by the SEC; and |
| (cccc) | “VWAP” shall have the meaning ascribed thereto in Section 3(i). |
7
| 2. | Board Nomination Rights; Nomination Procedure; Board Observer Rights |
| (a) | For so long as the 10% Threshold is met, ENI shall be entitled, at its own discretion, to designate one nominee (the “First ENI Nominee”) for election or appointment to the Board. |
| (b) | In addition to its right to designate the First ENI Nominee pursuant to Section (a), for so long as the 20% Threshold is met, ENI shall be entitled, at its own discretion, to designate one additional nominee (the “Second ENI Nominee”, and together with the First ENI Nominee, the “ENI Nominees”, and individually, a “ENI Nominee”) for election or appointment to the Board. If ENI is entitled to designate the Second ENI Nominee pursuant to this Section (b), then at least one of the ENI Nominees shall be independent of NMG within the meaning of (i) section 1.4 of National Instrument 51-102 – Audit Committees (in Québec, Regulation 52-110 respecting Audit Committees), and (ii) Section 303A.02 of the NYSE Listed Company Manual and applicable rules of the SEC at the time of such ENI Nominee’s election as a Director and for so long as such ENI Nominee continues to be a Director. In connection with the designation of the ENI Nominees, ENI shall consider the equity, diversity and inclusion programs, policies and strategies of NMG, and ENI shall consider in good faith any views, positions and recommendations made by NMG regarding the designation of the ENI Nominees in connection therewith. |
| (c) | Notwithstanding the foregoing, to be eligible as a ENI Nominee, such individual must be eligible to be a corporate director pursuant to the Act, applicable Canadian Securities Laws and Exchange Rules and consent in writing to act as a director of NMG. |
| (d) | As long as ENI has a right to designate a ENI Nominee for election or appointment to the Board under this Section 2, NMG shall (i) ensure that NMG’s constating documents authorize the election or appointment of such ENI Nominee to the Board, and (ii) include such ENI Nominee in any Management Information Circular, and take the necessary steps to comply with the rights of ENI, including (i) recommending to the holders of the Common Shares or other shares in the capital of NMG (collectively, the “Shareholders”) that they vote in favour of the election of such ENI Nominee to the Board, and (ii) supporting such ENI Nominee for election in a manner which is no less rigorous and favourable than the manner in which NMG supports all of the other nominees for election as Directors, which, for the avoidance of doubt shall include soliciting proxies for the election of all of the nominees of the Corporation for election as Directors. |
| (e) | NMG shall notify in writing ENI of its intention to hold a meeting of Shareholders at which, among other things, the election of Directors is considered (an “Election Meeting”) and the time at which the Management Information Circular relating to such meeting is anticipated to be approved by the Board at least 45 days and no more than 75 days before such anticipated approval, subject to a shorter notification period with the prior written consent of ENI. ENI shall have the right to notify NMG of the ENI Nominee or the ENI Nominees designated by it in accordance with this Section 2 at any time, but at least 15 days before the date of the anticipated approval of the Management Information Circular by the Board, failing which ENI shall be deemed to have designated each of the ENI Nominees who is serving as a Director at such time, subject to such individual continuing to satisfy the conditions for election or appointment to the Board set forth in Section 2(c), as applicable. |
8
| (f) | Before the Election Meeting following the date of this Agreement, or if the individual designated by ENI as a ENI Nominee ceases to be a director of NMG or if the Board position held by a ENI Nominee otherwise becomes vacant, ENI shall be entitled to designate another individual as a ENI Nominee to replace such ENI Nominee, and such individual shall be appointed by the Board as soon as reasonably practicable, insofar as the Act, applicable Canadian Securities Laws and Exchange Rules allow, for a term ending at the close of the next annual meeting of Shareholders. Failing such a designation by ENI, the Board may fill the vacancy, but only if it is required to do so to comply with the Act, applicable Canadian Securities Laws and Exchange Rules, provided such individual thereby designated by the Board to fill such vacancy resigns as soon as ENI elects to designate a ENI Nominee to fill such vacancy. |
| (g) | Until May 15, 2027 and provided that: |
| (i) | ENI has exercised its right to designate a ENI Nominee in accordance with this Section 2; |
| (ii) | NMG has provided ENI with advance written notice of the Director nominees that management of NMG will recommend Shareholders vote in favour of in connection with an annual general meeting of the Shareholders (collectively, the “Management Nominees”); |
| (iii) | no Management Nominee is a Sanctioned Person or a FEOC; and |
| (iv) | ENI shall be entitled not to vote, or to abstain from voting, on the election of the Management Nominees, |
then ENI agrees to vote all Common Shares beneficially owned, or over which Control or direction is exercised, by ENI and its Affiliates at each Election Meeting in favour of the Management Nominees, other than: (i) in connection with any merger, amalgamation, arrangement, take-over bid, going private transaction or other similar transaction; (ii) any Management Nominees who the Board is recommending as required under or in connection with arrangements with another Shareholder; or (iii) any Management Nominees whose nomination is, in the opinion of ENI, acting reasonably, not appropriate for reputational or similar reasons.
| (h) | The ENI Nominees shall be entitled to disclose any information or documentation received by them in their capacity as members of the Board to ENI or its Affiliates. To the extent that any information disclosed by any of the ENI Nominees is “Confidential Information” (as defined in the Confidentiality Agreement), ENI agrees to treat and shall cause any of its Affiliates to treat such information or documentation as “Confidential Information” in accordance with the Confidentiality Agreement. |
9
| (i) | For so long as ENI is entitled to designate a ENI Nominee pursuant to this Section 2, ENI shall be entitled (but not obligated) to designate an observer (a “ENI Observer”) to attend all meetings of the Board. If (i) ENI ceases to have the right to designate a ENI Nominee pursuant to this Section 2, and (ii) the 5% Threshold is met, then ENI shall also have the right to appoint a ENI Observer to attend all meetings of the Board. NMG shall invite the ENI Observer to, subject to the terms of the Observer Agreement, attend and participate in all meetings of the Board in a non-voting capacity. |
| (j) | NMG shall, subject to the exclusions outlined in Section 2(k), give the ENI Observer (i) copies of all notices, minutes, consents and other materials related to the Board or any of its committees (collectively, the “Board Materials”) that it provides to the Directors (in their capacity as Directors only and not as members of any committee) at the same time and in the same manner as provided to such Directors, and (ii) to the extent invited to attend a meeting of a committee of the Board only, copies of all notices, minutes, consents and other materials related to such committee and meeting (collectively, the “Committee Materials”) that it provides to the members of such committee at the same time and in the same manner as provided to such members; provided, however, that the ENI Observer shall agree to enter into an observer governance and confidentiality agreement with NMG, in form and substance satisfactory to NMG, acting reasonably and on terms and subject to conditions not less favourable to the Eni Observer in any respect than those applicable to any other Board observer (an “Observer Agreement”), prior to being permitted to attend any meetings of the Board or being provided with any Board Materials or Committee Materials. |
| (k) | The ENI Observer may be excluded from access to any Board Materials and, if applicable, Committee Materials, or any portion thereof if, in the opinion of NMG’s counsel, (i) such exclusion is reasonably necessary to (x) preserve the solicitor-client or litigation privilege between the Corporation or its Affiliates and its counsel (provided that any such exclusion shall only apply to such portion of such material or meeting which would be required to preserve such privilege), or (y) prevent a conflict of interest between ENI and NMG (it being understood that this includes any sensitive information relating to or potentially affecting NMG’s relationship with ENI), or (ii) such exclusion is required in order to comply with any applicable Laws. |
| (l) | The ENI Observer shall be entitled to disclose any information or documentation received by them to ENI or any of its Affiliates. To the extent that any information disclosed by the ENI Observer is “Confidential Information” (as defined in the Confidentiality Agreement), ENI agrees to treat and shall cause any of ENI’s Affiliates to treat such information or documentation as “Confidential Information” in accordance with the Confidentiality Agreement. |
10
| (m) | For so long as a ENI Nominee is serving on the Board, such ENI Nominee shall be entitled in such ENI Nominee’s discretion to (i) be a member of such committees of the Board to which such ENI Nominee may be appointed from time to time, and (ii) attend any Board committee meetings, and receive any related Committee Materials at the same time and in the same manner as provided to the members of the relevant Board committee. In addition to the foregoing, as long as a ENI Nominee is serving on the Board, such ENI Nominee (and not more than one ENI Nominee) shall be entitled to be, in such ENI Nominee’s discretion, a member of the Project Management and Development Committee, at which it shall be entitled to be accompanied by a team of technical experts of no more than two persons, for technical assistance purposes and without participation rights, at the meetings of such committee. For the avoidance of doubt, the ENI Observer shall not be entitled to be a member of any committee of the Board. |
| (n) | NMG shall allow the ENI Nominees and the ENI Observer to participate in any Board or committee meetings (that they are entitled to attend) remotely by videoconference or by means of a similar communication equipment whereby all persons participating in the Board meeting or committee meeting, as applicable, are able to hear, see and speak to each other. |
| (o) | The ENI Nominees shall be entitled to the same board compensation, indemnification and insurance coverage as other non-management Directors (unless waived by ENI). NMG shall pay travel and other expenses incurred by the ENI Nominees in connection with their attendance at in-person meetings of the Board or any committee thereof. |
| (p) | NMG covenants and agrees that any advance notice by-law or policy or similar instrument, of or adopted by NMG shall not restrict, limit, prohibit or conflict with the exercise by ENI of its nomination rights under this Section 2. |
| (q) | NMG shall not be required to (i) pay any compensation to, or reimburse any expenses of, any ENI Observer, or (ii) provide any indemnification, or maintain coverage under any policies of directors’ and officers’ insurance, in favour of any ENI Observer. |
| (r) | Subject to Section (d)(i), rules and procedures regarding Board size and operations, including notification periods, meeting agenda content, remote participation rights and maximum number of Directors shall be governed in accordance with NMG’s Articles and By-Laws, as may be amended from time to time in accordance with the Act. |
11
| 3. | Pre-Emptive Right and Top-Up Right |
| (a) | In the event of any issuance of Common Shares or Convertible Securities (collectively, the “Pre-Emptive Right Securities”, and any such issuance of Pre-Emptive Right Securities pursuant to a public offering, a private placement or otherwise, an “Offering”), ENI shall have the right (the “Pre-Emptive Right”) to subscribe for and to be issued, on the same terms and conditions of such Offering, at the offering price per Pre-Emptive Right Security determined pursuant to Section 3(e), and otherwise on substantially the same terms and conditions of the Offering (provided that, if ENI is prohibited by Applicable Securities Laws or other applicable Laws from participating on substantially the same terms and conditions of the Offering, the Corporation shall use commercially reasonable efforts to enable ENI to participate on terms and conditions that are as substantially similar as circumstances permit): |
| (i) | in the case of an Offering of Common Shares, up to such number of Common Shares as would result in the Pro Rata Interest immediately following completion of such Offering being equal to the Pro Rata Interest immediately prior to such Offering; and |
| (ii) | in the case of an Offering of Convertible Securities, up to such number of Convertible Securities (assuming conversion, exercise or exchange of all of the Convertible Securities issued in connection with such Offering and issuable pursuant to this Section 3(a)) as would result in the Pro Rata Interest immediately following completion of such Offering being equal to the Pro Rata Interest immediately prior to such Offering, |
in each case, for greater certainty, after giving effect to the issuance of any Common Shares or Convertible Securities acquired by ENI and its Affiliates as part of the Offering, other than pursuant to the exercise of the Pre-Emptive Right, if applicable. Pre-Emptive Right Securities may be offered by way of a separate private placement to ENI to be completed in accordance with Section 3(d), unless NMG and ENI agree that ENI will participate directly in the Offering.
| (b) | Promptly, and at least ten (10) Business Days (or such shorter period as may be required to comply with the rules of the TSX or the NYSE) prior to the public announcement of the Offering (or, in the case of an Offering that is made pursuant to a “bought deal agreement” (as defined in National Instrument 44-101 – Short Form Prospectus Distributions (in Québec, Regulation 44-101 respecting Short Form Prospectus Distributions)) (a “Bought Deal”), at least two (2) Business Days), NMG shall deliver to ENI a notice in writing (the “Offering Notice”). The Offering Notice shall set out: |
| (i) | to the extent known, the number of Common Shares or Convertible Securities proposed to be issued under such Offering; |
| (ii) | the material terms and conditions of Common Shares or any Convertible Securities proposed to be issued and any other terms and conditions of such Offering; |
12
| (iii) | to the extent known, the offering price per Common Share or Convertible Security proposed to be issued by NMG under such Offering; |
| (iv) | to the extent known, the name of any agent(s) or underwriter(s) expected to be involved in the Offering; |
| (v) | the intended form of the Offering (including a Bought Deal, overnight marketed, fully marketed or private placement); |
| (vi) | the expected use of the proceeds of the Offering; |
| (vii) | the proposed closing date of the Offering; |
| (viii) | the number of Common Shares and Convertible Securities outstanding as of the date of the Offering Notice; and |
| (ix) | if known to the Corporation, and as permitted by Applicable Securities Laws, within one (1) Business Day of the Corporation becoming aware of such information, the intention of any other investor to subscribe for and purchase Pre-Emptive Right Securities under rights similar to the Pre-Emptive Right, as applicable. |
| (c) | If ENI wishes to exercise the Pre-Emptive Right in respect of an Offering, ENI shall give written notice to NMG (the “Exercise Notice”) of its intention to exercise such right and of the number of Common Shares or Convertible Securities, as applicable, that ENI wishes to subscribe for and purchase pursuant to the Pre-Emptive Right. ENI shall deliver the Exercise Notice to subscribe to: (i) an Offering (other than in connection with a public offering that is a Bought Deal), within seven (7) Business Days after the date of receipt of the Offering Notice, or (ii) an Offering that is a Bought Deal, within 24 hours after the date of receipt of the Offering Notice (each, the “Exercise Notice Period”). In the event the Offering Notice does not contain enough information on the anticipated Offering as set forth in Section 3(b)(i) through (viii) to allow ENI to provide the Exercise Notice within the 7-Business Day period provided for in (c)(i) above, NMG shall provide a subsequent complementary notice including all the information set forth in Section 3(b)(i) through (viii), immediately after all such information is known to NMG (the “Supplemental Offering Notice”), it being understood that an Exercise Notice that contains the information set forth in Section 3(b)(i) and 3(b)(ii), as well as sufficient information (including any calculation formula) to determine the price set forth in Section 3(b)(iii) shall be deemed a sufficient Exercise Notice not requiring any Supplemental Offering Notice and that any other notice provided by NMG in such circumstances shall not be deemed a Supplemental Offering Notice for the purposes herein. ENI shall then give written notice to NMG within forty-eight (48) hours after receipt of such Supplemental Offering Notice (the “Additional Notice Period”) of its intention to exercise its Pre-Emptive Right (the “Supplemental Exercise Notice”). |
13
| (d) | If ENI delivers an Exercise Notice or Supplemental Exercise Notice, as the case may be, to NMG within the Exercise Notice Period or the Additional Notice Period (as applicable), then NMG shall, subject to the receipt of all required regulatory and other approvals (including the approvals required pursuant to Applicable Securities Laws, Exchange Rules or other applicable Laws and, subject to Section 3(n), any Shareholder approval required thereunder, including by recommending that Shareholders vote in favour of the issuance of the Pre-Emptive Right Securities, as applicable, to ENI), which approvals NMG shall use its best efforts to obtain, and subject to compliance with applicable Laws, issue to ENI against payment of the subscription price payable in respect thereof and as determined pursuant to Section 3(e), that number of Common Shares or Convertible Securities set forth in the Exercise Notice or Supplemental Exercise Notice, as the case may be. |
| (e) | The Pre-Emptive Right will be exercisable by ENI at the offering price made available by the Corporation to other investors in such Offering; provided that if the offering price is lowered by the Corporation in the course of any such Offering, ENI will be entitled to pay the lowest price paid to the Corporation by any investor in the relevant Offering without regard to any applicable fees or commissions (except for any such fees or commissions that are paid or payable to the ultimate beneficial purchasers of such Pre-Emptive Right Securities) in respect of each class of securities issued (and ENI will be entitled to a refund (to be paid to ENI within two (2) Business Days of completion of the Offering) to the extent that it has already remitted funds to the Corporation in payment in connection with such Offering) and otherwise on substantially the same terms and conditions offered to other investors in the Offering; and provided, further, that, if the consideration payable in connection with the Offering is not cash, subject to Applicable Securities Laws, the Pre-Emptive Right will be exercisable by ENI at a price in cash per Pre-Emptive Right Security equal to the implied value per Pre-Emptive Right Security of the non-cash consideration payable under the relevant agreement(s) in respect of the Offering. |
| (f) | The closing of the exercise by ENI of the Pre-Emptive Right will take place on the closing date set out in the Offering Notice or Supplemental Offering Notice (as applicable), which shall be, to the extent practicable, concurrent with the related issuance pursuant to the Offering and, if not practicable, as soon as practicable thereafter. If the closing of the exercise of the Pre-Emptive Right has not been completed by the 75th day following the receipt of the Offering Notice or Supplemental Offering Notice, as applicable (or such earlier or later date as the Parties may agree), then ENI may elect to withdraw its Exercise Notice or Supplemental Exercise Notice (as applicable), in which case NMG will have no obligation to issue to ENI, and ENI will have no obligation to subscribe for or purchase, any Common Shares or Convertible Securities, as applicable, pursuant to such exercise of the Pre-Emptive Right. |
| (g) | If ENI does not elect to exercise its Pre-Emptive Right in connection with an Offering in full, then NMG shall be free, for a period of 90 days following the expiration of the Exercise Notice Period or Additional Notice Period, as the case may be (or the date of such notice from ENI to NMG that it will not exercise its Pre-Emptive Right, if delivered prior to the expiration of the Exercise Notice Period or the Additional Notice Period, as applicable), to issue and sell the Pre-Emptive Right Securities subject to the Offering Notice or the Supplemental Offering Notice, as the case may be, on terms and conditions not more favourable to the purchasers thereof; provided that any Pre-Emptive Right Securities offered or sold by NMG (or on its behalf) after such 90-day period, or any Pre-Emptive Right Securities offered or sold by NMG (or on its behalf) during such 90-day period on terms and conditions more favourable to the purchasers thereof than those offered to ENI in the Offering Notice or the Supplemental Offering Notice, must, in either case, be reoffered to ENI pursuant to this Section 3 as a new Offering. |
14
| (h) | The Pre-Emptive Right of ENI shall not apply, and NMG will not be required to grant any right to ENI to subscribe for and purchase Common Shares or Convertible Securities, as applicable, in the following circumstances: |
| (i) | in respect of the issuance of securities pursuant to any at-the-market distribution; |
| (ii) | in respect of the issuance, exercise or settlement of options, rights, deferred share units, restricted share units, performance share units or other securities or entitlements issued under security-based compensation arrangements or equity incentive plans of NMG and any issuance of Common Shares pursuant thereto; |
| (iii) | in connection with the conversion of the Note or in connection with the exercise, conversion, exchange or other similar right pursuant to the terms of a Convertible Security issued prior to the date hereof; |
| (iv) | in connection with bona fide bank debt, equipment financing or non-equity interim financing transactions with third party lenders to NMG, in each case, with an equity component; |
| (v) | in connection with any transaction pursuant to which NMG issues Common Shares or Convertible Securities for non-cash consideration in a business acquisition or rollover transaction, or as a result of a consolidation, amalgamation, merger, joint venture, arrangement, corporate reorganization or similar transaction or business reorganization resulting in a combined company; in each case, excluding such transactions where NMG would not be the surviving entity as a publicly traded company; |
| (vi) | in respect of the exercise of any top-up right similar to the Top-Up Right by any other third party; and |
15
| (vii) | in connection with a share split, stock dividend or any similar transaction or recapitalization involving the Common Shares (provided, for greater certainty, that ENI shall be permitted to participate in any such event in its capacity as a Shareholder to the same extent as all other Shareholders), |
(such securities to be issued by the Corporation in the foregoing circumstances, the “Excluded Securities”), and, in each case, which has been approved by the Board.
| (i) | NMG shall deliver to ENI a written notice (the “Top-Up Notice”) as soon as reasonably practicable if the Pro Rata Interest becomes less than 20%, 10% or 5% as a result of NMG issuing Excluded Securities or Pre-Emptive Right Securities for which ENI has elected not to exercise its Pre-Emptive Right (a “Top-Up Event”) setting out the number of Top-Up Shares. Upon receipt of a Top-Up Notice, ENI shall have the right (the “Top-Up Right”), within 90 days of receipt of the Top-Up Notice, to subscribe for and purchase, by way of a private placement, up to such number of Common Shares as would result in the Pro Rata Interest immediately following completion of the Top-Up Event being equal to the Pro Rata Interest immediately prior to the Top-Up Event (the “Top-Up Shares”). The price of the Top-Up Shares to be subscribed for and purchased by ENI under the Top-Up Right will be, subject to Applicable Securities Laws: (i) if the Common Shares are then listed on the TSX, the “VWAP” (as defined in the TSX Company Manual) (the “VWAP”) of the Common Shares on the TSX for the twenty consecutive trading days prior to the date of receipt of the Top-Up Notice, or (ii) to the extent the Common Shares are not then listed on the TSX, the VWAP of the Common Shares on such other exchange on which the Common Shares are then listed for the twenty consecutive trading days prior to the date of receipt of the Top-Up Notice (in each case, the “Market Price”); provided that, if the Top-Up Right is triggered by NMG issuing Excluded Securities pursuant to Section 3(h)(v) for non-cash consideration, subject to Applicable Securities Laws, the price of the Top-Up Shares to be subscribed for and purchased by ENI under the Top-Up Right will be a price in cash per Top-Up Share equal to the Market Price per Top-Up Share; provided, further, that, if the Top-Up Right is triggered by NMG issuing Excluded Securities to a third party in accordance with Section 3(h)(vi) in respect of a top-up right of such third party which has in turn been triggered by the transactions contemplated by the FID Equity Offering, subject to Applicable Securities Laws, the price per Top-Up Share to be subscribed for and purchased by ENI under the Top-Up Right will be the lower of (A) the price per share paid by such third party exercising its top-up right with respect to such Excluded Securities and (B) the Share Price (as defined in the Subscription Agreement); and provided, further, that, if a Blackout Period delays the issuance of Top-Up Shares under the Top-Up Right, in circumstances where a Top-Up Exercise Notice has been delivered by ENI prior to the Blackout Period, the Market Price shall be calculated: (A) as at the date on which the Top-Up Exercise Notice was delivered by ENI, if permitted by applicable Exchange Rules; or (B) under applicable Exchange Rules after applying up to the maximum permitted discount available in connection with such exercise of the Top-Up Right that would result in ENI subscribing for or purchasing the Top-Up Shares at the price that is as close as possible to, but not less than, the price that would apply in (A) if permitted by applicable Exchange Rules. For the avoidance of doubt, in no circumstances shall the Corporation be required to issue Top-Up Shares at a discount that exceeds the maximum allowable discount under Exchange Rules. The Corporation covenants and agrees to request the applicable Exchange to provide price protection, and issuance and listing approval, as applicable, to permit the Top-Up Shares to be issued at the price determined pursuant to this Section 3(i). NMG shall use best efforts to obtain all required regulatory and other approvals (including the approvals required pursuant to Applicable Securities Laws, Exchange Rules or other applicable Laws and, subject to Section 3(n), any Shareholder approval required thereunder, including by recommending that Shareholders vote in favour of the issuance of the Top-Up Shares, as applicable, to ENI), and, subject to compliance with applicable Laws and Exchange Rules, promptly issue to ENI against payment of the subscription price payable in respect thereof, that number of Top-Up Shares set forth in the Top-Up Exercise Notice. |
16
| (j) | If ENI wishes to exercise the Top-Up Right in respect of a Top-Up Notice, ENI shall give written notice to NMG (the “Top-Up Exercise Notice”) of its intention to exercise such right and of the number of Top-Up Shares that ENI wishes to subscribe for and purchase pursuant to the Top-Up Right. |
| (k) | For greater certainty, if ENI does not exercise its Top-Up Right by delivering, within the 90-day period provided for in Section 3(i), a Top-Up Exercise Notice, ENI will no longer be entitled to exercise any Top-Up Right or other right in connection with the issuance referred to in the applicable Top-Up Notice (it being understood, for greater certainty, that if ENI is entitled to exercise any other right (including a Top-Up Right) if a Pro Rata Interest is lower than the Pro Rata Interest for which the applicable Top-Up Notice was delivered to ENI, ENI shall be entitled to exercise any right (including any Top-Up Right) with respect to any such lower Pro Rata Interest). |
| (l) | Notwithstanding Section 3(c), in the event that ENI does not deliver an Exercise Notice (or a Supplemental Exercise Notice, as applicable) to the Corporation in connection with an Offering within the Exercise Notice Period (or the Additional Notice Period, as applicable), ENI shall have the right, within an additional 20 days after the closing of an Offering, to deliver to NMG an Exercise Notice to subscribe for and purchase Pre-Emptive Right Securities, by way of a private placement, at the same price and conditions as the Offering for which ENI has failed to deliver the Exercise Notice (or Supplemental Exercise Notice, as applicable). NMG shall use best efforts to obtain all required regulatory and other approvals (including the approvals required pursuant to Applicable Securities Laws, Exchange Rules or other applicable Laws and, subject to Section 3(n), any Shareholder approval required thereunder, including by recommending that Shareholders vote in favour of the issuance of the Pre-Emptive Right Securities, as applicable, to ENI), and, subject to compliance with applicable Laws and Exchange Rules, promptly issue to ENI against payment of the subscription price payable in respect thereof, that number of Pre-Emptive Right Securities set forth in the Exercise Notice. |
17
| (m) | The Corporation agrees to take any and all commercially reasonable steps as are required to facilitate the rights of ENI set forth in this Section 3, including: (i) undertaking a private placement or directed offering of Common Shares, Convertible Securities or Top-Up Shares to ENI in connection with the exercise of such rights, or (ii) if required, increasing the size of the Offering to satisfy its obligations to ENI pursuant to the exercise of its Pre-Emptive Right, in each case, subject to obtaining any regulatory or other approvals required by applicable Laws or Exchange Rules. |
| (n) | If the Corporation is required by Exchange Rules, Applicable Securities Laws or otherwise under applicable Laws to seek Shareholder approval for the issuance of all or a portion of the Common Shares, Convertible Securities or Top-Up Shares to ENI, then the Corporation shall: (i) complete the issuance of that portion, if any, of such Common Shares, Convertible Securities or Top-Up Shares which may be issued without prior Shareholder approval, as applicable, to ENI in accordance with the terms of this Section 3, (ii) cause the issuance of the balance of the Common Shares, Convertible Securities or Top-Up Shares to ENI to be included on the agenda and voted upon by Shareholders at the Corporation’s next shareholder meeting, and (iii) recommend approval of the issuance of the Common Shares, Convertible Securities or Top-Up Shares which are subject to Shareholder approval to ENI and shall solicit proxies in support thereof. ENI shall have a reasonable advance right to review and provide comments on all materials to be provided to the Shareholders in connection with such meeting, and the Corporation shall give reasonable consideration to all such comments made and shall incorporate all comments that relate to or refer to ENI, to the extent commercially reasonable. |
| (o) | Notwithstanding any other provision of this Agreement, to the extent that the Corporation shall have determined in good faith, after obtaining the advice of external legal counsel, that it is prohibited under Applicable Securities Laws from offering or issuing Top-Up Shares to ENI as a result of the existence of material undisclosed information relating to the Corporation or a regularly scheduled quarterly blackout period that shall not exceed a period commencing on the date following the end of a fiscal year or an interim period and ending on the date that is two trading days following release of the relevant annual or interim financial statements (a “Blackout Period”), the Corporation may delay compliance with the deadlines to give notice of or complete the issuance of Top-Up Shares; provided that it complies with the alternative procedures set out in this Section 3(o). If the commencement or completion of the exercise by ENI of a Top-Up Right is delayed as a result of a Blackout Period, the Corporation shall deliver to ENI: (i) prompt written notice (the “Blackout Notice”) that the exercise of a Top-Up Right has been triggered but is delayed as a result of a Blackout Period, including details of the commencement and termination date (if known) of such Blackout Period, and (ii) no more than five (5) Business Days following the end of such Blackout Period, written notice (a “Blackout Termination Notice”) that the Blackout Period has ended. Following delivery to ENI of the Blackout Notice, ENI shall not be entitled to deliver a Top-Up Exercise Notice in respect of the exercise of the Top-Up Right, in which case ENI shall be entitled to deliver its Top-Up Exercise Notice within 90 days of receipt of the Blackout Termination Notice. Where a Top-Up Exercise Notice is delivered prior to the commencement of a Blackout Period, the relevant Top-Up Shares shall be issued to ENI no more than ten (10) Business Days following the end of such Blackout Period. |
18
| (p) | ENI shall not be entitled to exercise the Pre-Emptive Right under this Section 3, and the Pre-Emptive Right shall terminate on the date on which the 10% Threshold ceases to be met (except during the exercise period, including any Blackout Period, and unless ENI exercises its Top-Up Right in accordance with Section 3(i)). |
| (q) | ENI shall not be entitled to exercise the Top-Up Right under this Section 3, and the Top-Up Right shall terminate on the date on which the 5% Threshold ceases to be met (except during the exercise period, including any Blackout Period, and unless ENI intends to exercise its Top-Up Right in accordance with Section 3(i)). |
| 4. | Information Rights |
| (a) | In the case of (x) Section 4(a)(i), for so long as the 10% Threshold is met, (y) Section 4(a)(ii)(1) and (2), for so long as the 5% Threshold is met, and (z) Section 4(a)(ii)(3) and (4), for so long as ENI or any of its Affiliates is a shareholder of NMG: |
| (i) | NMG shall provide ENI, its designees and its representatives with reasonable access upon reasonable notice during normal business hours, to: |
| (1) | NMG’s and its Subsidiaries’ books and records so that ENI, its designees and its representatives may conduct reasonable inspections, investigations and audits relating to NMG and its Subsidiaries, including as to the internal accounting controls and operations of NMG and its Subsidiaries; |
| (2) | conduct a maximum of two site visits per year at NMG’s and its Subsidiaries’ properties and facilities, unless reasonably required by ENI to comply with applicable Laws, in which case NMG will allow ENI, its designees and its representatives, upon reasonable notice during normal business hours, to conduct a maximum of two additional site visits per year at NMG’s and its Subsidiaries’ properties and facilities; |
| (ii) | NMG shall: |
| (1) | deliver to ENI, forthwith following receipt thereof, a copy of any notice, letter, correspondence or other communication from a Governmental Entity or any litigation proceedings or filings involving NMG, in each case, in respect of NMG’s potential, actual or alleged material violation of any and all Laws applicable to the business, affairs and operations of NMG and its Subsidiaries anywhere in the world, and any responses by NMG in respect thereto; |
19
| (2) | deliver to ENI, as soon as available (and in any event within 45 days) after the end of each quarter or each calendar month, as the case may be (or, in the case of the final quarter or calendar month, as the case may be, of any fiscal year, as soon as available (and in any event within 90 days) after the end of such quarter or calendar month, as the case may be), a copy of the quarterly, or if available monthly, financial and operational report for the Corporation; |
| (3) | deliver to ENI, as promptly as practicable, such information and documentation relating to NMG and its Affiliates as ENI may reasonably request from NMG from time to time for purposes of complying with ENI’s tax reporting obligations with respect to its ownership of NMG; and |
| (4) | deliver to ENI, as promptly as practicable, such information and documentation relating to any matter which may reasonably affect ENI’s or its Affiliates’ reputation. |
| (b) | The provision of any information pursuant to this Section 4 shall not be deemed a waiver of any privilege, including privileges arising under or related to the attorney-client privilege or any other applicable privilege. |
| 5. | Lock-Up |
| (a) | Except as expressly permitted by Section 5(d), until May 15, 2027 (the “Lock-Up Expiration Date”), none of ENI or any of its Affiliates shall, directly or indirectly, assign, sell, transfer, offer, contract to sell, accept an offer to purchase, gift, pledge, encumber, hypothecate, provide a security interest in respect of, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, whether by actual disposition or effective economic disposition pursuant to any swap or other arrangement that transfers to another, in whole or in part, any interest in, or economic consequences of ownership of any of the Locked-Up Shares owned, directly or indirectly, by ENI or any of its Affiliates (a “Transfer”). |
| (b) | In case of breach by NMG of any of its undertakings provided for in Section 2, or in case any ENI Nominee is not appointed to the Board pursuant to Sections 2(d) to 2(f), in case of a vacancy, at the expiration of the period prescribed in NMG’s By-Laws to fill a Board vacancy in accordance with Section 2(f), then the restrictions of Section 5(a) shall no longer apply. In addition to the foregoing, the restrictions of Section 5(a) shall no longer apply in case of: (i) any material breach by NMG of this Agreement or of the Subscription Agreement that is not cured within 10 Business Days of such breach; or (ii) NMG, any of its Affiliates or any of their respective executives, being the subject of any of (x) investigation, conviction, arrest, or guilty plea or admission of guilt, no contest or nolo contendere, relating to fraud, bribery, corruption, money-laundering, racketeering, or other misuse of funds by a Governmental Entity; or (y) public allegations by a First Nation, Governmental Entity or director, officer or employee of NMG relating to a material violation of human rights or indigenous land, territory or resources rights, or other offenses involving moral turpitude that are reasonably likely to result in reputational harm to ENI. |
20
| (c) | Following the Lock-Up Expiration Date and except as expressly permitted by Section 5(d), none of ENI or its Affiliates shall knowingly Transfer any Locked-Up Shares to a Sanctioned Person or to a FEOC; provided that any Transfer that takes place through the facilities of a stock exchange on which the Common Shares are listed or through a transaction facilitated by a broker-dealer without disclosure being made to ENI of the purchaser of such securities, shall not constitute a breach of this Section 5(c). |
| (d) | The restrictions and limitations contained in Section 5(a) shall not apply to: |
| (i) | any Transfer in favour of any Affiliates of ENI, provided that any such transferee shall, prior to any such Transfer, agree to be bound by, and comply with, all of the obligations, covenants, provisions, and terms of this Agreement that are applicable to ENI, and shall deliver to NMG a duly executed undertaking to such effect in form and substance satisfactory to NMG, acting reasonably, or an agreement that NMG believes, acting reasonably, is substantially conformed with the terms of this Agreement, mutatis mutandis; |
| (ii) | any Transfer pursuant to a bona fide third party “take-over bid” (as defined in NI 62-104), including pursuant to any lock-up, support or similar agreement; provided that such take-over bid is made in compliance with section 2.8 of NI 62-104 and that in the event that the take-over bid is not completed, the Locked-Up Shares shall remain subject to the restrictions and limitations contained in Section 5(a); |
| (iii) | any Transfer pursuant to a “business combination” (as defined in Multilateral Instrument 61-101 – Protection of Minority Security Holders in Special Transactions) (in Québec, Regulation 61-101 respecting Protection of Minority Security Holders in Special Transactions)) involving NMG, including pursuant to any lock-up, support or similar agreement, provided that in the event that the business combination is not completed, the Locked-Up Shares shall remain subject to the restrictions and limitations contained in Section 5(a); |
| (iv) | any Transfer to a nominee, a custodian (including a trust) or an intermediary where there is no change in ownership; |
21
| (v) | any Transfer in connection with ENI pledging or hypothecating any Locked-Up Shares in favour of a Lender as security for a bona fide loan; provided that the Locked-Up Shares will remain subject to the restrictions and limitations contained in Section 5(a); and |
| (vi) | any other Transfer of any securities pursuant to the exercise of any right pursuant to this Agreement or the Registration Rights Agreement. |
| (e) | Nothing in this Agreement, including the disapplication of the restrictions of Section 5(a) in case of application of Section 5(b), shall be construed as a waiver of the statutory lockup provisions and any other transfer restrictions contained in Applicable Securities Laws and Exchange Rules. |
| 6. | Standstill |
| (a) | Until 11:59 p.m. (Montréal time) on the date that is two years from the date hereof, ENI or any of its Affiliates will not, alone or in concert with others, without the prior written consent of NMG or as otherwise expressly permitted or contemplated under this Agreement: |
| (i) | Purchase, acquire, or offer to purchase (except under the terms of the Subscription Agreement or any other subscription agreement entered into between ENI and NMG following the date hereof) any equity securities of NMG (including Common Shares), except pursuant to: |
| (1) | a stock dividend or dividend-in-kind paid by NMG or a Subsidiary to all holders of Common Shares, including pursuant to any dividend reinvestment plan of NMG or a Subsidiary; |
| (2) | a security-based compensation agreement; |
| (3) | open market purchase of Common Shares following the FID Equity Offering, provided that, at any given time, the aggregate number of Common Shares purchased in all such transactions shall not be more than one percent (1%) of the number of issued and outstanding Common Shares at such time; or |
| (4) | as otherwise permitted pursuant to Section 5(d); |
| (ii) | effect, seek, offer or propose, or in any way advise or encourage any other Person to effect, seek, offer or propose (in each case, whether publicly or otherwise): |
| (1) | any take-over bid, merger, amalgamation, plan of arrangement, reorganization or other business combination involving NMG or any of its assets; or |
22
| (2) | any recapitalization, restructuring, liquidation, dissolution, disposition of a material portion of the assets or other extraordinary transaction with respect to NMG or any of its assets; |
| (iii) | directly or indirectly make, or in any way participate in, any solicitation of proxies to vote, or seek to advise or influence any other Person with respect to the voting of any voting securities of NMG; |
| (iv) | otherwise act in a manner to seek to control the management, Board or the policies of NMG beyond the Board and committees representation provided in this Agreement; |
| (v) | enter into any arrangements, understandings or agreements, whether written or oral, with, or advise, finance, aide, encourage or act in concert with, any other Person in connection with any of the foregoing; |
| (vi) | make any public announcement of any intention to do or take any of the foregoing or take any action that could require NMG to make a public announcement with respect to any of the foregoing; or |
| (vii) | attempt to induce any party not to make or conclude any proposal with respect to NMG by threatening or indicating that ENI may take any of the foregoing actions. |
| (b) | Notwithstanding the foregoing, the limitations and prohibitions set forth in this Section 6 shall no longer apply from the earliest of: |
| (i) | The date that NMG enters into a definitive agreement with a third party that provides for (1) the acquisition by any means, including, without limitation, acquisition of equity, a statutory plan of arrangement, merger or business combination, by any Person, directly or indirectly, of more than 50% of the total voting power of the outstanding voting stock of NMG, (2) the date NMG enters into a definitive agreement with a third party that provides for an acquisition of all or substantially all of the assets of NMG, or (3) the date a third party, alone or in concert with others, enters into a definitive agreement to acquire, or acquires, directly or indirectly, more than 50% of the voting securities of NMG; provided, however, that, in the event that the proposed transaction in (1), (2) or (3) is terminated, the limitations and prohibitions set forth in Section 6(a) shall be reinstated; |
| (ii) | The date NMG makes a public announcement regarding the entering into of an agreement described in paragraph (i) above; and |
| (iii) | The date a third party publicly announces a plan that provides for any of the change-of-control transactions indicated in paragraph (i) above. |
| (c) | The provisions of this Section 6 shall not apply to (i) an acquisition or the announcement of an acquisition of NMG shares occurring as a result of ENI’s acquisition of a third party that holds such shares, unless such acquisition is conducted solely for the purpose of avoiding the application of the provisions of this Section 6; and (ii) any confidential offer or proposal made by ENI or its Affiliates to the Board. |
23
| 7. | Other Covenants of NMG |
| (a) | NMG shall maintain listing of the Common Shares on the TSX and the NYSE (collectively with the TSX, the “Exchanges”, and individually, an “Exchange”), or another securities or stock exchange approved in advance by ENI, and shall not de-list or resolve to de-list the Common Shares from either Exchange without the prior written consent of ENI, which consent may be withheld in ENI’s sole and absolute discretion, unless such de-listing results from a take-over bid or a business combination or such de-listing results from the graduation from one of the Exchanges to another recognized securities or stock exchange. |
| (b) | For so long as ENI or any of its Affiliates is a shareholder of NMG, and in connection with NMG carrying out its related responsibilities: |
| (i) | NMG shall cause its employees, Directors, officers, and to the best of its ability, any Person acting on its behalf, to comply, with applicable Anti-Corruption Laws; |
| (ii) | neither NMG, its Subsidiaries, nor any of its or their employees, directors, officers, or to the knowledge of NMG, any Person acting on its behalf, shall: |
| (1) | give, promise to give, or offer to give, any payment, loan, gift, donation, or anything else of value (including a facilitation payment), directly or indirectly, whether in cash or in kind, to or for the benefit of, any Government Official or any other Person while knowing or having reason to know that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any such Government Official or to any other Person for the purpose of: (A) improperly influencing any action or decision of any Government Official in their official capacity, including a decision to fail to perform official functions, (B) inducing any Government Official or other Person to act in violation of their lawful duty, (C) securing any improper advantage, or (D) persuading any Government Official or other Person to use its influence with any Governmental Entity or any government-owned Person to effect or influence any act or decision of such Governmental Entity or government-owned Person; and |
| (2) | accept, receive, agree to accept or receive, or authorize the acceptance or receipt of any contribution, payment, gift, entertainment, money, anything of value, or other advantage in violation of applicable Anti-Corruption Laws; |
24
| (iii) | NMG shall as soon as practicable and no later than April 30, 2027, institute and maintain, for itself and its Subsidiaries, a risk-based compliance program reasonably designed to ensure compliance with all applicable Anti-Corruption Laws. The compliance program shall include policies and procedures, due diligence on third parties, contract terms and provision, records of payments to third parties (including, without limitation, agents, consultants, representatives and distributors) and Government Officials, reporting mechanism and investigation process, disciplinary measures, training and communications activities, monitoring, oversight and appropriate resourcing. As soon as practicable after the date of this Agreement, and in any event within 30 days after the date on which NMG adopts an anti-corruption compliance policy/procedures, NMG shall provide a copy of such policy/procedures to ENI, together with the resolutions of the Board or other relevant official document evidencing NMG’s adoption of such policy/procedures. Upon reasonable request, NMG agrees to provide responsive information to ENI concerning its compliance with Anti-Corruption Laws. NMG shall promptly notify ENI if NMG becomes aware of any violation of Anti-Corruption Laws; |
| (iv) | NMG shall not be permitted, without the prior written consent of ENI (which consent may be withheld in ENI’s sole and absolute discretion), to amend its stock option plan to provide it with a capacity to issue options which represent a greater number than fifteen percent (15%) of the issued and outstanding Common Shares at any point in time; |
| (v) | NMG shall not be permitted, without the prior written consent of ENI (which consent may be withheld in ENI’s sole and absolute discretion), to amend its Articles or other constating documents, or agree to do so, or take any steps to do so (including by means of calling a shareholder meeting or setting a record date for a shareholder meeting in respect thereof), in order to create new voting or participating share classes or series with more favorable rights (including voting rights, rights to dividends and distributions, or rights to the remaining property of NMG upon dissolution, liquidation or winding-up) than the rights pertaining to the Common Shares; and |
| (vi) | NMG shall not propose, implement, adopt, or resolve to propose, implement or adopt a shareholder rights plan without the prior written consent of ENI, which consent may be withheld in ENI’s sole and absolute discretion. |
25
| (c) | For so long as ENI or any of its Affiliates is a shareholder of NMG, and in connection w NMG carrying out its related responsibilities: |
| (i) | NMG shall and shall cause its Subsidiaries and its and their respective employees, directors, officers, and to the best of its ability, its and their respective agents, and any Person acting on its or their behalf, to comply with all applicable Sanctions; |
| (ii) | NMG shall as soon as practicable and no later than April 30, 2027, institute and maintain, for itself and its Subsidiaries, a risk-based compliance program commensurate with a company of NMG’s size and stage of development reasonably designed to ensure compliance with Sanctions by itself, its Subsidiaries, and each of their respective directors, officers, and employees. The compliance program shall include risk-based policies, procedures, controls, training, monitoring, oversight and appropriate resourcing following guidance provided by any relevant Sanctions Authority. Within 30 days after the date on which NMG adopts such policy, NMG shall provide a copy of such policy to ENI, together with the resolutions of the Board or other relevant official document evidencing NMG’s adoption of such policy. Upon reasonable request, NMG agrees to provide responsive information to ENI concerning its compliance with Sanctions. NMG shall promptly notify ENI if NMG becomes aware of any violation of Sanctions; |
| (iii) | NMG shall not, and shall cause its Subsidiaries and its and their respective employees, directors or officers not to, conduct any business transaction or activity with a Sanctioned Person or in a Sanctioned Territory or with a FEOC; and |
| (iv) | neither NMG, nor any of its Subsidiaries or their respective directors, officers or employees: (i) (is or) shall be a Sanctioned Person or FEOC; or (ii) to the best knowledge of NMG, (acts or) shall act under the direction of, on behalf of or for the benefit of, a Sanctioned Person or FEOC. |
| (d) | NMG represents and warrants that, as of the date of this Agreement: |
| (i) | neither NMG, nor any of its Subsidiaries, or its or their respective employees, directors or officers, conducts any business transaction or activity with a Sanctioned Person or in a Sanctioned Territory or with a FEOC; and |
| (ii) | neither NMG, nor any of its Subsidiaries or their respective directors, officers, or employees, nor any direct or, to the knowledge of NMG, indirect owner of one percent (1%) or more interest in NMG as of the date of this Agreement, or any direct or, to the knowledge of NMG, indirect owner that may acquire five percent (5%) or more interest in NMG after the date of this Agreement: (i) is a Sanctioned Person or a FEOC; or (ii) to the best knowledge of NMG, acts under the direction of, on behalf of, or for the benefit of a Sanctioned Person or a FEOC. |
26
| (e) | Sections 7(c) and 7(d) shall not be interpreted or applied in relation to NMG to the extent that the representations made under Sections 7(c) and 7(d) violate, or would result in a breach of the Foreign Extraterritorial Measures Act (Canada). |
| (f) | For so long as ENI is a shareholder of NMG, and in connection with NMG carrying out its related responsibilities: |
| (i) | NMG shall cause its employees, Directors, officers, and to the best of its ability, any Person acting on its behalf to comply with all applicable Anti-Money Laundering Laws; and |
| (ii) | NMG shall as soon as practicable and no later than April 30, 2027, institute and maintain policies and procedures commensurate with a company of NMG’s size and stage of development reasonably designed to ensure compliance with any applicable Anti-Money Laundering Laws by itself, its Subsidiaries and each of their respective directors, officers, and employees. |
| (g) | For so long as ENI or any of its Affiliates is a shareholder of NMG, and in connection with NMG carrying out its related responsibilities: |
| (i) | NMG shall use best efforts to cause its employees, Directors, officers, and to the best of its ability, any Person acting on its behalf to comply with Human Rights; and |
| (ii) | NMG shall as soon as practicable and no later than April 30, 2027, institute and maintain policies and procedures reasonably designed to ensure compliance with Human Rights, for itself and its Subsidiaries. As soon as practicable after the date of this Agreement, and in any event within 30 days after the date on which NMG adopts a Human Rights compliance policy, NMG shall provide a copy of such policy to ENI, together with the resolutions of the Board or other relevant official document evidencing NMG’s adoption of such policy. Upon reasonable request, NMG agrees to provide responsive information to ENI concerning its compliance with Human Rights. NMG shall promptly notify ENI if NMG becomes aware of any violation of Human Rights. |
| (h) | NMG shall, and shall cause each of its Subsidiaries to: (a) make and keep books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of NMG and such Subsidiaries; and (b) devise and maintain a system of internal controls over financial reporting sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary: (A) to permit preparation of financial statements in conformity with IFRS or any other criteria applicable to such statements, and (B) to maintain accountability for assets. |
27
| (i) | Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, NMG and its Subsidiaries agree to cooperate with any inquiry by Canadian Governmental Entities with respect to NMG’s business (or that of its Subsidiaries) or any past or new investment NMG or its Subsidiaries have received or undertaken, or receive or undertake, including by providing any information and documentary material lawfully required or requested by Canadian Governmental Entities, after due discussion with Canadian Governmental Entities. Without limiting the foregoing, following the conclusion of any applicable appeal or review process, NMG and its Subsidiaries shall take any and all actions to comply with any valid order, writ, judgment, ruling, assessment, injunction, decree, stipulation, determination, undertaking, commitment, mitigation measure, agreement, or award entered by or with any Canadian Governmental Entity with respect to any such investment NMG or its Subsidiaries have received or undertaken, or receive or undertake. |
| (j) | NMG and its Subsidiaries shall promptly inform ENI of any such inquiry, and keep ENI reasonably informed regarding the existence of, and efforts to address and resolve, any action, investigation, review, or inquiry of any kind, including but not limited to formal, informal, written, or oral, involving NMG or its Subsidiaries relating to any developments in any regulatory process resulting from such inquiry. |
| (k) | As applicable under relevant Law, NMG and its Subsidiaries shall provide or cause to be provided commercially reasonable assurances or agreements as required by the applicable Minister under the Investment Canada Act, including entering into a mitigation agreement, letter of assurance, national security agreement, or other similar arrangement or agreement; provided however, that such assurance or agreement does not have a material adverse effect on NMG or its Subsidiaries. |
| (l) | NMG represents and warrants that it and its Subsidiaries have provided, and covenants to provide, to the best of its knowledge, truthful and complete information to Canadian Governmental Entities with respect to inquiries or requests that NMG or its Subsidiaries have received or may receive, as applicable. |
| (m) | For so long as ENI holds any participation in NMG’s share capital, NMG shall not, without ENI’s prior written consent (which consent may be withheld in ENI’s sole and absolute discretion): |
| (i) | enter into any agreement in respect of, or otherwise support or recommend, a direct or indirect equity investment in NMG from a Sanctioned Person or a FEOC; |
| (ii) | enter into any agreement in respect of, or otherwise support or recommend, any of the following transactions with a Sanctioned Person, or a FEOC: (a) a direct or indirect equity investment in an Affiliate of the Corporation that directly or indirectly owns the assets of the Corporation’s Matawinie or Uatnan mine projects (the “Subject Business”), including a joint venture with respect to the Subject Business; (b) the acquisition by any means, including, without limitation, acquisition of equity, a statutory plan of arrangement, merger or business combination, directly or indirectly, of more than 50% of the total voting power of the outstanding voting stock of the Subject Business; or (c) the acquisition, directly or indirectly, of the power to direct or cause the direction of the management or policies of the Subject Business; except in any case where the failure to enter into any such agreement, or otherwise support or recommend any such transaction, would be inconsistent with the Directors’ fiduciary duties under applicable Laws. |
28
| (n) | For so long as the 5% Threshold is met, NMG shall ensure that the rules and procedures regarding the functioning of the Board (including notification periods to call meetings and the means to participate to meetings remotely) as currently set out in NMG’s Articles and By-Laws are not amended in any manner that would place ENI in a less favourable position than as currently provided therein (including, for the avoidance of doubt, by shortening any notification periods of meetings or reducing the means to participation to meetings remotely). |
| 8. | General Provisions |
| (a) | Crossing of Thresholds. It is understood that, notwithstanding anything to the contrary set forth herein, where this Agreement provides that any rights of ENI terminate upon the 5% Threshold, the 10% Threshold or the 20% Threshold ceasing to be met, such rights shall continue to be applicable (i) during the 20-day period referred to in Section 3(l) and, if ENI delivers an Exercise Notice (or a Supplemental Exercise Notice, as applicable) to NMG, until the closing of the exercise by ENI of the Pre-Emptive Right pursuant to Section 3(f); and (ii) from the moment in which the relevant threshold ceases to be met until (a) if ENI does not deliver the relevant Top-Up Exercise Notice to NMG, the expiry of ENI’s right to deliver such Top-Up Exercise Notice (taking into account, for the avoidance of doubt, any delay resulting from a Blackout Period), and (b) if ENI delivers the relevant Top-Up Exercise Notice to NMG, the date on which ENI and its Affiliates have crossed back above the relevant threshold as a result of the exercise of its Top-Up Right. |
| (b) | Termination. The provisions in Sections 8(c), 8(d), 8(e), 8(h), 8(i), 8(j), 8(j), 8(k), 8(o), 8(q), 8(r) and 8(s) of this Agreement and this Section 8(a), 8(b), this Agreement shall survive the termination of any of ENI’s rights pursuant to other provisions of this Agreement. Notwithstanding the foregoing: |
| (i) | the Parties’ rights and obligations under Sections 7(b), 7(c), 7(e), 7(f), 7(g), 7(i), 7(j), 7(k), 7(k) and 7(l) of this Agreement shall survive so long as ENI is a shareholder of NMG; |
| (ii) | Section 4(a)(ii) of this Agreement shall survive for the periods set forth therein; and |
29
| (iii) | the termination of this Agreement shall not affect any of the rights or liabilities of any Party in connection with any breach of this Agreement which may have occurred before ENI ceases to be a shareholder of NMG. |
| (c) | Amendment and Waiver. No amendment or waiver of any provision of this Agreement shall be binding on either Party unless consented to in writing by both Parties. No waiver by any Party of any provision hereof shall be effective unless explicitly set forth in writing and executed by the Party so waiving. No waiver of any provision (or any breach thereof) of this Agreement shall constitute a waiver of any other provision (or any breach thereof), nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless otherwise expressly provided. No failure on the part of any Party to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver of such right. No single or partial exercise of any such right shall preclude any other or further exercise of such right or the exercise of any other right. |
| (d) | Non-Assignment. Neither Party may assign any of its rights or benefits under this Agreement, or delegate any of its duties or obligations, except with the prior written consent of the other Party. Notwithstanding the foregoing, ENI may assign and transfer all of its rights, benefits, duties and obligations under this Agreement in their entirety, without the consent of NMG, to any Affiliate of ENI; provided that (A) any such assignee shall, prior to any such transfer, agree to be bound by, and comply with, all of the obligations, covenants, provisions, and terms of this Agreement that are applicable to ENI, and shall deliver to NMG a duly executed undertaking to such effect in form and substance satisfactory to NMG, acting reasonably, and (B) such assignment and transfer shall not release ENI from any accrued liability for its obligations under this Agreement. |
| (e) | Expenses. Except as otherwise expressly provided in this Agreement, each Party shall pay for its own costs and expenses incurred in connection with the negotiation, preparation, execution and performance of this Agreement and the transactions contemplated herein, including the fees and expenses of legal counsel, financial advisors, accountants, consultants and other professional advisors. |
| (f) | Time of the Essence. Time shall be of the essence of this Agreement. Each of the parties hereto shall be in default by the mere lapse of time for performing its obligations hereunder, without the necessity of further notice or delay, as contemplated by article 1594 of the Civil Code of Québec. |
| (g) | Further Acts. Each Party shall promptly do, make, execute, deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other Party may reasonably require from time to time for the purpose of giving effect to this Agreement. |
| (h) | Successors and Assigns. This Agreement shall enure to the benefit of and shall be binding on and enforceable by and against the Parties and their respective successors and permitted assigns. |
30
| (i) | No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. |
| (j) | Notices. |
| (i) | Any notice or other communication to be given hereunder shall be in writing and shall: |
| (1) | in the case of notice to ENI, be addressed to: |
Eni S,p.A.
Via Emilia 1
20097 San Donato Milanese (MI) - ITALY
| Attention: | [REDACTED: CONTACT INFORMATION] |
| Email: | [REDACTED: CONTACT INFORMATION] |
with a copy (which shall not constitute notice) to:
Eni International B.V.
Strawinskylaan 1163
1077 XX Amsterdam – The Netherlands
World Trade Center | Tower Ten – 11th Floor
| Attention: | [REDACTED: CONTACT INFORMATION] |
| Email: | [REDACTED: CONTACT INFORMATION] |
| (2) | In the case of notice to NMG, shall be addressed to: |
Nouveau Monde Graphite Inc.
481 rue Brassard
Saint-Michel-des-Saints, Québec
J0K 3B0
| Attention: | [REDACTED: CONTACT INFORMATION] | |
| Email: | [REDACTED: CONTACT INFORMATION] |
| Attention: | [REDACTED: CONTACT INFORMATION] | |
| Email: | [REDACTED: CONTACT INFORMATION] |
31
with a copy (which shall not constitute notice) to:
Stein Monast L.L.P.
70 rue Dalhousie, Suite 300
Québec, Québec
G1K 4B2
| Attention: | [REDACTED: CONTACT INFORMATION] |
| Email: | [REDACTED: CONTACT INFORMATION] |
and each notice or communication shall be personally delivered (including by courier service) to the addressee or sent by electronic transmission to the addressee, and (i) a notice or communication which is personally delivered shall, if delivered before 5:00 p.m. (in the jurisdiction of the recipient) on a Business Day, be deemed to be given and received on that day and, in any other case, be deemed to be given and received on the first Business Day following the day on which it is delivered; and (ii) a notice or communication which is sent by electronic transmission shall, if sent on a Business Day before 5:00 p.m. (in the jurisdiction of the recipient), be deemed to be given and received on that day and, in any other case, be deemed to be given and received on the first Business Day following the day on which it is sent. Either Party hereto may at any time change its address for service from time to time by notice given in accordance with this Section 8(j).
| (k) | Governing Law. This Agreement shall be construed and governed by the laws of the Province of Québec and the federal laws of Canada applicable therein without regard to conflict of law principles that would result in the application of the laws of any other jurisdiction. |
| (l) | Dispute Resolution. Any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement, including with respect to the formation, applicability, breach, termination, validity or enforceability thereof, shall be resolved by confidential arbitration. The arbitration shall be conducted by three arbitrators and administered by the International Centre for Dispute Resolution in accordance with its International Dispute Resolution Procedure in effect at the time of the arbitration, except as they may be modified herein or by mutual agreement of the parties. Each party shall designate one arbitrator, with the third arbitrator to be designated by the parties by agreement, or failing such agreement, by the two party-appointed arbitrators. The seat of the arbitration shall be: (1) New-York, in the State of New-York, USA, (2) Paris, France, or (3) London, United-Kingdom, at ENI’s choice, and it shall be conducted in the English language. The arbitration award shall be final and binding on the Parties, and the Parties undertake to carry out any award without delay. |
32
| (m) | Filing & Disclosure. NMG and ENI shall cooperate with each other in order to file, disclose, or complete such other procedure applicable under the relevant applicable Laws and/or stock exchange rules in order to give full effect to the terms and conditions set forth in this Agreement. If any of the terms and conditions are not permitted under the said Laws and/or rules, then NMG and ENI shall discuss in good faith the necessary adjustments to achieve the similar effect to the terms and conditions set forth herein to the extent possible. |
| (n) | Confidentiality. The confidentiality obligations and restrictions of the parties contained in the Confidentiality Agreement shall apply to this Agreement as if fully set forth herein. |
| (o) | Public Notices/Press Releases. No Party shall (i) issue any press release or otherwise make public announcements or disclosures with respect to this Agreement without the consent of the other Party (which consent shall not be unreasonably withheld or delayed), or (ii) make any regulatory filing with any Governmental Entity with respect thereto without prior consultation with the other Party; provided, however, that, this Section 8(o) shall be subject to each Party’s overriding obligation to make any disclosure or regulatory filing required under applicable Laws and the Party making such requisite disclosure or regulatory filing shall use all commercially reasonable efforts to give prior oral and written notice to the other Party and reasonable opportunity to review and comment on the requisite disclosure or regulatory filing before it is made; provided, further, that, except as required by applicable Laws, in no circumstances shall any such disclosure by, or regulatory filing of, NMG or any of its Affiliates, include the name of ENI or any related Person set forth in Section 8(j) without ENI’s prior written consent, in its sole discretion. |
| (p) | Language. The Parties confirm their express wish that this Agreement and all related documents be drafted in the English language. Les Parties confirment leur volonté expresse que la présente convention et tous les documents s’y rattachant soient rédigés en langue anglaise. |
| (q) | Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any applicable Laws or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible. |
33
| (r) | Entire Agreement. This Agreement, the provisions contained in this Agreement, and the agreements and other documents to be delivered pursuant to, or in connection with, this Agreement or in connection with, constitute the entire agreement between the Parties with respect to the subject matter thereof and supersede all prior communications, proposals, representations and agreements, whether oral or written, with respect to the subject matter thereof. Nothing in this Section 8(r) limits or excludes any liability for fraud. |
| (s) | Counterparts. This Agreement and all documents contemplated by or delivered under or in connection with this Agreement may be executed and delivered (including by electronic means, e.g., DocuSign or Adobe Sign) and delivered via electronic mail (including pdf), or other transmission or method in any number of counterparts, with the same effect as if each Party had signed and delivered the same document, and all counterparts shall be construed together to be an original and shall constitute one and the same agreement. |
[Remainder of page left intentionally blank. Signature page follows.]
34
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives effective as of the date first written above.
| NOUVEAU MONDE GRAPHITE INC. | ||
| Per: | (s) Eric Desaulniers | |
| Name: Eric Desaulniers | ||
| Title: President and Chief Executive Officer | ||
| ENI INTERNATIONAL B.V. | ||
| Per: | (s) Paolo Conte | |
| Name: Paolo Conte | ||
| Title: Head of Corporate Affairs | ||
[Signature page to Investor Rights Agreement]
Exhibit 99.3
NOUVEAU MONDE GRAPHITE INC.
– and –
ENI INTERNATIONAL B.V.
REGISTRATION RIGHTS AGREEMENT
May 15, 2026
TABLE OF CONTENTS
| Article 1 DEFINITIONS AND INTERPRETATION | 1 | |
| 1.1 | Definitions | 1 |
| 1.2 | Rules of Construction | 7 |
| 1.3 | Accounting Principles | 8 |
| Article 2 REGISTRATION RIGHTS | 8 | |
| 2.1 | Demand Registration Rights | 8 |
| 2.2 | Piggyback Registration | 10 |
| 2.3 | Shelf Registration | 11 |
| 2.4 | Expenses | 12 |
| 2.5 | Other Sales | 13 |
| 2.6 | No Change or Subordination | 13 |
| 2.7 | Preparation; Reasonable Investigation | 13 |
| 2.8 | Indemnification | 14 |
| 2.9 | Sale by Affiliates | 16 |
| 2.10 | Rule 144 Compliance; Reporting | 16 |
| 2.11 | Conflict | 17 |
| 2.12 | Acting as Trustees | 17 |
| Article 3 AMENDMENTS | 17 | |
| 3.1 | Amendments and Modifications | 17 |
| 3.2 | Changes in Capital of the Corporation | 17 |
| Article 4 GENERAL | 18 | |
| 4.1 | Application of this Agreement | 18 |
| 4.2 | Termination | 18 |
| 4.3 | Assignment | 19 |
| 4.4 | Permitted Transferees | 19 |
| 4.5 | Co-operation | 19 |
| 4.6 | Further Assurances | 19 |
| 4.7 | Time of the Essence | 20 |
| 4.8 | Enurement | 20 |
| 4.9 | Public Notices/Press Releases | 20 |
| 4.10 | Notices to Parties | 20 |
| 4.11 | Entire Agreement | 22 |
| 4.12 | Waiver | 22 |
| 4.13 | Consent | 22 |
| 4.14 | Governing Law | 22 |
| 4.15 | Severability | 22 |
| 4.16 | Counterparts | 23 |
| 4.17 | Language | 23 |
- i -
THIS REGISTRATION RIGHTS AGREEMENT is made as of the May 15, 2026.
BETWEEN:
NOUVEAU MONDE GRAPHITE INC., a company governed by the Canada Business Corporations Act
(the “Corporation”)
- and -
ENI INTERNATIONAL, B.V. a company governed by the laws of the Netherlands
(the “Investor”).
WHEREAS pursuant to the terms of a subscription agreement (the “Subscription Agreement”) dated the 9th day of April, 2026 between the Corporation and the Investor, the Corporation agreed to issue and sell to the Investor, and the Investor agreed to purchase from the Corporation, an aggregate of 38,043,478 Common Shares (as defined below) on the terms and subject to the conditions set forth in the Subscription Agreement;
AND WHEREAS in connection with the Subscription Agreement, the Parties (as defined below) desire to set forth their agreements regarding the Investor’s registration rights with respect to the Registerable Shares (as defined below) and certain other matters relating to the Registerable Shares;
NOW THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements of the Parties (as defined below), and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Article 1
DEFINITIONS AND INTERPRETATION
| 1.1 | Definitions |
In this Agreement, the following terms have the following meanings:
“5% Threshold” means that the Investor and its Affiliates own, directly or indirectly, 5% or more of the issued and outstanding Common Shares on the relevant date, excluding for purposes of this calculation any Pending Top-Up Securities and, for the avoidance of doubt, any voting or equity shares of the Corporation issuable upon the exercise, exchange or conversion of any Convertible Securities;
“10% Threshold” means that the Investor and its Affiliates own, directly or indirectly, 10% or more of the issued and outstanding Common Shares on the relevant date, excluding for purposes of this calculation any Pending Top-Up Securities and, for the avoidance of doubt, any voting or equity shares of the Corporation issuable upon the exercise, exchange or conversion of any Convertible Securities;
- 2 -
“Affiliate” (i) with reference to any Person other than the Investor, shall have the meaning ascribed thereto in NI 45-106; and (ii) with reference to the Investor, shall mean Eni S.p.A. (as long as the Investor is controlled by Eni S.p.A.) and any Persons controlled by Eni S.p.A.;
“Applicable Securities Laws” means Canadian Securities Laws and U.S. Securities Laws or any of them, as the circumstances require;
“Blackout Period” has the meaning set out in Section 2.1(d)(ii);
“Board” means the board of directors of the Corporation, as constituted from time to time;
“Bought Deal” means an underwritten public offering made on a “bought deal” basis in one or more Canadian provinces or territories, or in the United States of America, pursuant to which an underwriter has committed to purchase Registerable Shares under a “bought deal agreement” (within the meaning of NI 44-101 or any corresponding definition under U.S. Securities Laws), prior to the filing of a Canadian Preliminary Prospectus as provided for under Canadian Securities Laws, or any corresponding filing under U.S. Securities Laws;
“Business Day” means any day, other than (i) a Saturday, Sunday or statutory holiday in the Province of Québec, in the Netherlands or in Belgium, and (ii) a day on which banks are generally closed in Montréal, Québec, in Amsterdam, the Netherlands or in Brussels, Belgium;
“Canadian Base Shelf Prospectus” means a short form prospectus that is prepared in the form required under NI 44-101, as varied in accordance with NI 44-102;
“Canadian Preliminary Prospectus” means a preliminary prospectus of the Corporation in respect of Shares (in the English and French language, as applicable) which, unless the context otherwise requires, has been filed and a receipt issued (or deemed to be issued) therefor by the applicable Canadian Securities Authorities, including all amendments thereto and documents incorporated by reference therein;
“Canadian Prospectus” means a (final) prospectus of the Corporation in respect of Shares (in the English and French language, as applicable) which, unless the context otherwise requires, has been filed and a receipt issued (or deemed to be issued) therefor by the applicable Canadian Securities Authorities, including all amendments thereto and documents incorporated by reference therein, and includes, as applicable, a Canadian Base Shelf Prospectus and a Canadian Shelf Prospectus Supplement;
“Canadian Securities Authorities” means any of the securities commissions or similar securities regulatory authorities in each of the provinces of Canada in which the Corporation is a reporting issuer (or analogous status) and any of their successors;
“Canadian Securities Laws” means the Securities Act (Québec) and any similar securities legislation of each of the provinces of Canada, and the respective rules, regulations, blanket orders and orders and the forms and disclosure requirements made or promulgated under such legislation, and the policies, policy statements, instruments, bulletins and notices of one or more of the securities commissions or other securities regulatory authorities in the provinces of Canada, as the same may hereafter be amended from time to time or replaced;
- 3 -
“Canadian Shelf Prospectus Supplement” means a shelf prospectus supplement, as such term is defined in NI 44-102;
“Common Shares” means the common shares in the capital of the Corporation;
“Convertible Securities” means securities that are exercisable or exchangeable for, or convertible into, Common Shares, including options, warrants, convertible notes and convertible debentures;
“Corporation” has the meaning set out on the first page of this Agreement;
“Demand Registration” has the meaning set out in Section 2.1(b);
“Demand Registration Request” has the meaning set out in Section 2.1(c);
“Designated Registerable Shares” has the meaning set out in Section 2.1(c);
“Distribution” means a distribution of Registerable Shares to the public by way of a Prospectus under Applicable Securities Laws;
“Exchange” means such stock exchange(s) and quotation service(s), if any, as the Common Shares may be listed or quoted on, as applicable, from time to time;
“Free Writing Prospectus” means a Corporation free writing prospectus, as defined in Rule 433 under the U.S. Securities Act, relating to an offer of Registerable Shares;
“Governmental Entity” means any domestic or foreign federal, provincial, regional, state, municipal or other government, governmental department, agency, authority or body (whether administrative, legislative, executive or otherwise), court, tribunal, commission or commissioner, bureau, minister or ministry, board or agency, or other regulatory authority, including any securities regulatory authorities and stock exchange, or any other entity, insofar as it exercises a legislative, judicial, regulatory, administrative, expropriation or taxing power or function of or pertaining to government;
“FINRA” means the Financial Industry Regulatory Authority or any successor agency;
“Incentive Plan” means any stock option plan, omnibus plan or other equity incentive plan of the Corporation adopted by the Board from time to time, as same may be amended, restated, replaced or supplemented from time to time;
“Investor” has the meaning set out on the first page of this Agreement;
“Investor Rights Agreement” means the investor rights agreement dated the date hereof between the Corporation and the Investor;
- 4 -
“Laws” means (i) all laws, statutes, codes, ordinances, decrees, rules, regulations, by-laws, instruments, orders, directives, judgments, decrees, injunctions, decisions, rulings, awards or writs enacted, promulgated, issued, released, or imposed by any Governmental Entity, including Applicable Securities Laws, and (ii) all policies, practices, protocols, requirements, standards or guidelines of any Governmental Entity, in each case relating or applicable to such Person, property, transaction, event or other matter;
“Losses” has the meaning set out in Section 2.8(a);
“MJDS” means the multijurisdictional disclosure system established by the United States and Canada referred to in Canada as National Instrument 71-101 – The Multijurisdictional Disclosure System (in Québec, Regulation 71-101 respecting The Multijurisdictional Disclosure System);
“NI 43-101” means National Instrument 43-101 – Standards of Disclosure for Mineral Projects (in Québec, Regulation 43-101 respecting Standards of Disclosure for Mineral Projects);
“NI 44-101” means National Instrument 44-101 – Short Form Prospectus Distributions (in Québec, Regulation 44-101 respecting Short Form Prospectus Distributions);
“NI 44-102” means National Instrument 44-102 – Shelf Distributions (in Québec, Regulation 44-102 respecting Shelf Distributions);
“NI 44-103” means National Instrument 44-103 – Post-Receipt Pricing (in Québec, Regulation 44-103 respecting Post-Receipt Pricing);
“NI 45-106” means in National Instrument 45-106 – Prospectus Exemptions (in Québec, Regulation 45-106 respecting Prospectus Exemptions);
“NI 51-102” means National Instrument 51-102 – Continuous Disclosure Obligations (in Québec, Regulation 51-102 respecting Continuous Disclosure Obligations);
“Notice” has the meaning set out in Section 4.9;
“Party” or “Parties” means one or more of the parties to this Agreement;
“Pending Top-Up Securities” has the meaning ascribed thereto in the Investor Rights Agreement;
“Permitted Holder” means any Affiliate or Subsidiary of the Investor;
“Permitted Transferee” means, in each case to the extent such Person agrees in writing to be bound by the terms of this Agreement, any Permitted Holder to whom the rights of the Investor or of another Permitted Holder are assigned pursuant to Section 4.4;
“Person” means and includes any individual, corporation, limited partnership, general partnership, joint stock corporation, limited liability corporation, joint venture, association, corporation, trust, bank, trust corporation, pension fund, business trust, administrator, authority, entity, executor, other legal representative, sole proprietorship, syndicate, trust, trustee, unincorporated association, or other organization, whether or not a legal entity, and any Governmental Entity;
- 5 -
“Piggyback Maximum Offering Size” shall have the meaning set forth in Section 2.2(a)(i)(A);
“Piggyback Registerable Shares” has the meaning set out in Section 2.2(a)(i);
“Piggyback Registration” has the meaning set out in Section 2.2(a)(i);
“Piggyback Registration Request” has the meaning set out in Section 2.2(a)(i);
“Prospectus” means (a) a Canadian Prospectus, (b)(i) the prospectus included in any Registration Statement, all amendments and supplements to such prospectus, including post-effective amendments and supplements, and all other material incorporated by reference in such prospectus, and (ii) any Free Writing Prospectus, or (c) a combination of (a) and (b);
“register” means (i) the filing of a Registration Statement to register securities under the U.S. Securities Act and such Registration Statement becoming effective, (ii) the qualification of securities for distribution under applicable Canadian Securities Laws in the applicable province or territory of Canada pursuant to a Canadian Prospectus (including in reliance upon NI 44-102 or NI 44-103), or (iii) a combination of both (i) and (ii), and “registered” and “registration” have a corresponding meaning;
“Registerable Shares” means the Shares (it being understood that, for purposes of this Agreement, a Person shall be deemed to be a holder of Registerable Shares whenever such Person has the right to then acquire or receive from the Corporation any Registerable Shares, whether or not such acquisition or receipt has actually been effected). As to any particular Registerable Shares, such shares shall cease to be Registerable Shares when: (i) (A) the SEC has declared a Registration Statement covering such shares effective and/or a receipt has been issued (or deemed to be issued) in respect of a Canadian Prospectus covering such shares and (B) such shares have been disposed of pursuant to such registration; (ii) such shares are otherwise transferred, other than to a Permitted Holder; or (iii) (A) such shares are eligible to be sold by such holder in compliance with the requirements of Rule 144 under the Securities Act, as such Rule 144 may be amended (or any successor provision thereto), without being subject to volume or manner of sale limits, and (B) the Investor (together with any of its respective Permitted Holders) does not meet the 10% Threshold;
“Registration” shall mean a Demand Registration, a Piggyback Registration or a Shelf Registration, as the case may be;
“Registration Expenses” means all out-of-pocket expenses incidental to the Parties’ performance of, or compliance with, obligations under this Agreement in connection with a Distribution, including all Taxes, all registration and filing fees, all fees and expenses incurred complying with Applicable Securities Laws, all printing expenses, all internal expenses, all “road show” and marketing expenses, all listing fees, all registrars’ and transfer agents’ fees, the fees and disbursements of counsel for the Corporation and the Investor and of the Corporation’s independent chartered professional accountants, including the expenses of any special audits and/or “comfort” letters required by or incidental to such performance and compliance, and all expenses or reimbursements owing to any underwriter (including the fees and expenses of the underwriter’s counsel), but excluding all Selling Expenses;
- 6 -
“Registration Statement” means any registration statement of the Corporation, including the Prospectus, amendments and supplements to such registration statement, including pre- and post- effective amendments, and all exhibits and all material incorporated by reference in such registration statement, other than a registration statement (and related prospectus) filed on Form S-1, Form F-1, Form S-4, Form F-4 or Form S-8 or any successor form thereto;
“SEC” means the Securities and Exchange Commission or any successor agency;
“Selling Expenses” means underwriting discounts, selling commissions and stock and share transfer taxes applicable to the sale of Registerable Shares only;
“Shares” means (i) Common Shares, (ii) any securities into which such shares may be converted, reclassified, redesignated, subdivided, consolidated or otherwise changed, (iii) any securities of the Corporation or of any other Person received by the holders of such shares as a result of any merger, amalgamation, reorganization, arrangement or other similar transaction involving the Corporation, (iv) any securities of the Corporation which are received by any one or more Persons as a stock dividend or distribution on or in respect of such shares, and (v) any securities, other instruments or rights that are exercisable or exchangeable for, or convertible into, or evidence the right to acquire, any shares of the Corporation or any of the other above securities; provided that options, restricted share units, deferred share units, performance share units and other similar equity-based awards under any Incentive Plan are not included until they are exercised for, or otherwise settled in, as applicable, Shares in accordance with such Incentive Plan;
“Shelf Registration” has the meaning set out in Section 2.3(a)(i);
“Shelf Registration Statement” has the meaning set out in Section 2.3(a)(i);
“Shelf Underwritten Offering” has the meaning set out in Section 2.3(a)(iv);
“Subscription Agreement” has the meaning set out in the recitals of this Agreement;
“Subsidiary” and “Subsidiaries” with relation to any Person has the meaning ascribed thereto in NI 45-106;
“Surviving Provisions” has the meaning set out in Section 4.2;
“Tax” or “Taxes” means any taxes, duties, fees, premiums, assessments, imposts, levies, expansion fees and other charges of any kind whatsoever imposed by any Governmental Entity, including all interest, penalties, fines, additions to tax or other additional amounts imposed by any Governmental Entity in respect thereof, and including those levied on, or measured by, or referred to as, income, gross receipts, profits, windfall, royalty, capital, transfer, land transfer, sales, goods and services, harmonized sales, use, value-added, excise, stamp, withholding, business, franchising, property, development, occupancy, employer health, payroll, employment, health, social services, education and social security taxes, all surtaxes, all customs duties and import and export taxes, countervail and anti-dumping, all license, franchise and registration fees and all employment insurance, health insurance and Canada and other pension plan premiums or contributions imposed by any Governmental Entity, and any transferee liability in respect of any of the foregoing;
- 7 -
“U.S. Exchange Act” means the United States Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder;
“U.S. Securities Act” means the United States Securities Act of 1933, and the rules and regulations promulgated thereunder;
“U.S. Securities Laws” means all applicable federal and state securities legislation of the United States, including the U.S. Securities Act and the U.S. Exchange Act, the respective regulations, rules and orders thereunder, and all applicable rules, regulations, policy statements, notices and interpretation notes issued by the SEC; and
“United States” or “U.S.” means the United States of America, its territories and possessions, any State of the United States and the District of Columbia.
| 1.2 | Rules of Construction |
Unless the context otherwise requires, in this Agreement:
| (a) | “Agreement”, “this Agreement”, “the Agreement”, “hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions mean or refer to this Agreement, as amended, supplemented or amended and restated from time to time, including the Schedule attached hereto or to any amendment to this Agreement, and any agreement or instrument supplemental hereto, and unless otherwise expressly stated herein, the expressions “Article”, “Section” and “Schedule” followed by a number or a letter mean and refer to the specified Article, Section or Schedule of this Agreement; |
| (b) | the division of this Agreement into Articles, Sections, subsections and clauses and the insertion of headings and a table of contents are provided for convenience of reference only and shall not affect the construction or interpretation thereof and all references to designated Articles, Sections or other subdivisions or to Schedules, are references to Articles, Sections or other subdivisions or to Schedules of this Agreement; |
| (c) | 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; |
| (d) | the words “includes” and “including”, when following any general term or statement, are not to be construed as limiting the general term or statement to the specific items or matters set forth or to similar items or matters, but rather as referring to all other items or matters that could reasonably fall within the broadest possible scope of the general term or statement; |
| (e) | if any date on which any action is required to be taken under this Agreement is not a Business Day, such action will be required to be taken on the next succeeding Business Day; |
- 8 -
| (f) | reference to any statute shall be deemed to be a reference to such statute as amended, re-enacted or replaced from time to time, including every regulation made pursuant thereto, all amendments to the statute or to any such regulation in force from time to time, and any statute or regulation which supplements or supersedes such statute or any such regulation; and |
| (g) | “Dollar” or “$”, in respect of all amounts referred to in this Agreement and all references to currency in this Agreement, unless otherwise expressly stated, shall mean Canadian dollars. |
| 1.3 | Accounting Principles |
Where the character or amount of any asset or liability or item of revenue or expense is required to be determined, or any consolidation or other accounting computation is required to be made for the purpose of this Agreement, such determination or calculation shall, to the extent applicable and except as otherwise specified herein or as otherwise agreed in writing by the Parties, be made in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board, applied on a consistent basis.
Article 2
REGISTRATION RIGHTS
| 2.1 | Demand Registration Rights |
| (a) | For so long as the Investor meets the 10% Threshold and after February 15, 2027, the Investor may require the Corporation to register all or a portion of the Registerable Shares then held by the Investor by filing a Prospectus and taking such other steps as may be necessary to facilitate a Distribution of all or any portion of the Registerable Shares held by the Investor. |
| (b) | Any such registration effected pursuant to this Section 2.1 is referred to herein as a “Demand Registration”. |
| (c) | Any such request by the Investor shall be made by a notice in writing (a “Demand Registration Request”) to the Corporation and shall specify the number and the class or classes of Registerable Shares to be sold (the “Designated Registerable Shares”) by the Investor, the intended method of disposition, whether such offer and sale shall be made by an underwritten public offering and the jurisdictions in which the registration is to be effected. The Corporation shall, subject to Applicable Securities Laws, use its commercially reasonable efforts to file within 30 days after receipt of the Demand Registration Request a Registration Statement and a Canadian Prospectus in compliance with Applicable Securities Laws in order to permit the Distribution of all of the Designated Registerable Shares of the Investor specified in the Demand Registration Request. The Parties shall cooperate in a timely manner in connection with such Distribution and the procedures in Schedule A shall apply. |
| (d) | The Corporation shall not be obliged to effect: |
| (i) | more than two (2) Demand Registrations in any twelve (12) month period; provided that for purposes of this Section 2.1, a Demand Registration pursuant to which the Designated Registerable Shares are to be sold shall not be considered as having been effected until (1) the Registration Statement has been declared effective by the SEC and (2) a receipt has been issued by the Canadian Securities Authorities for the Canadian Prospectus and has not been withdrawn or suspended; or |
- 9 -
| (ii) | a Demand Registration in the event the Corporation determines in its good faith judgment, after consultation with its financial and legal advisors, that (A) either (I) the effect of the filing of a Registration Statement and a Canadian Prospectus would have a material adverse effect on the Corporation because such action would materially interfere with a material acquisition, reorganization or similar material transaction involving the Corporation; or (II) there exists at the time material non-public information relating to the Corporation the disclosure of which would be materially adverse to the Corporation, and (B) it is therefore in the best interests of the Corporation to defer the filing of a Prospectus at such time, in which case the Corporation’s obligations under this Section 2.1 shall be deferred for a period of not more than ninety (90) days from the date of receipt of the Demand Registration Request (such 90-day period is referred to herein as a “Blackout Period”); provided, that after any initial Blackout Period, the Corporation may not invoke a subsequent Blackout Period until 12 months have elapsed from the end of any previous Blackout Period; provided, further, that the Corporation shall not register any securities for its own account or that of any other shareholder during such 90-day period other than pursuant to a Registration Statement on Form S-8 or other registration solely relating to an offering or sale to employees or Directors pursuant to any employee stock plan or other employee benefit arrangement. |
| (e) | In the case of registration of Registerable Shares initiated pursuant to this Section 2.1, the Investor shall have the right to select the managing underwriter(s) or managing agent(s) and the counsel retained for purposes of such registration. |
| (f) | The Investor shall have the right to withdraw a Demand Registration Request pursuant to this Section 2.1 without incurring any liability to the Corporation or any other Person by giving written notice to the Corporation; provided, that: |
| (i) | such withdrawal must be made in writing ten (10) Business Days prior to the execution of the underwriting agreement (or such other similar agreement) with respect to such offering; and |
| (ii) | such withdrawal shall be irrevocable. |
| (g) | For the avoidance of doubt, the registration rights granted pursuant to the provisions of this Section 2.1 shall be in addition to the registration rights granted pursuant to the provisions of Section 2.2. |
- 10 -
| 2.2 | Piggyback Registration |
| (a) | For so long as the Investor meets the 5% Threshold and after February 15, 2027: |
| (i) | each time the Corporation elects to proceed with the preparation and filing of (i) a Registration Statement under U.S. Securities Laws, or (ii) a Canadian Prospectus under Canadian Securities Laws, in each case in connection with a proposed Distribution of any of its securities, whether for its own account or for the account of one or more shareholders of the Corporation entitled to piggyback registration rights, the Corporation shall give prompt written notice thereof to the Investor as soon as practicable. In such event, the Investor shall be entitled, by written notice (the “Piggyback Registration Request”) given to the Corporation within twenty (20) days (except in the case of a Bought Deal in which case the Investor shall have only twenty-four (24) hours) after the receipt of such notice by the Investor, to require that the Corporation cause any or all of the Registerable Shares held by the Investor (the “Piggyback Registerable Shares”) to be included in such Prospectus (such registration being hereinafter referred to as a “Piggyback Registration”). Notwithstanding the foregoing: |
| (A) | in the event the lead underwriter or lead agent for the offering advises the Corporation and the Investor that in its good faith opinion, the inclusion of such Piggyback Registerable Shares, together with such other Common Shares requested to be included in the offering by other shareholders of the Corporation entitled to piggyback registration rights, may materially and adversely affect the price or success of the offering (such maximum offering size, the “Piggyback Maximum Offering Size”), the Corporation shall include in such registration, in the following priority: (i) first, such number of securities the Corporation proposes to sell; and (ii) second, a number of Piggyback Registerable Shares requested by the Investor, together with the number of Common Shares requested to be included in such Piggyback Registration by other shareholders of the Corporation entitled to piggyback rights, allocated, if necessary for the offering not to exceed the Piggyback Maximum Offering Size, on a pro rata basis among the Investor and such other shareholders of the Corporation based on their relative number of Common Shares requested to be included in the Piggyback Registration; |
| (B) | the Corporation may at any time before the effective date of such Prospectus, and without the consent of the Investor, abandon the proposed offering in which the Investor has requested to participate; and |
| (C) | the Investor shall have the right to withdraw the Piggyback Registration Request pursuant to this Section 2.2 without incurring any liability to the Corporation or any other Person by giving written notice to the Corporation; provided, however, that such withdrawal must be made in writing five (5) Business Days prior to the execution of the underwriting agreement (or such other similar agreement) with respect to such offering; and such withdrawal shall be irrevocable and, after making such withdrawal, the Investor shall no longer have any right to include its Piggyback Registerable Shares in the offering pertaining to which such withdrawal was made. |
- 11 -
| 2.3 | Shelf Registration |
| (a) | For so long as the Investor meets the 5% Threshold and after February 15, 2027 (except where specified otherwise): |
| (i) | the Investor shall, subject to Section 2.1(d), have the right to require the Corporation at any time and from time to time to (A) file a Registration Statement, including a Registration Statement covering the resale of all Registerable Shares on a delayed or continuous basis, on Form F-10 pursuant to MJDS or on Form F-3 or Registration Statement that may be available at such time (a “Shelf Registration Statement”), and (B) file a Canadian Prospectus pursuant to the provisions of NI 44-102, which, for greater certainty and as applicable, shall include Décision N° 2021-PDG-0066 – Décision générale relative à une dispense de certaines obligations du régime de prospectus préalable au bénéfice d’émetteurs établis bien connus of the Autorité des marchés financiers (Québec), including a Canadian Base Shelf Prospectus and a Canadian Shelf Prospectus Supplement, and take such other steps as may be necessary to register the Distribution in the United States and Canada of all or any portion of the Registerable Shares held by the Investor (a “Shelf Registration”), by giving a written notice (the “Shelf Registration Request”) with the information required in Section 2.1(c) to the Corporation; |
| (ii) | upon the receipt of a Shelf Registration Request pursuant to Section 2.3(a)(i), the Corporation shall, and subject to Applicable Securities Laws, use its commercially reasonable efforts to file within 30 days after receipt of the Shelf Registration Request a Shelf Registration Statement relating to such Shelf Registration and cause such Shelf Registration Statement to become effective under the U.S. Securities Act, and, as required, prepare and file a preliminary Canadian Base Shelf Prospectus (if applicable) and a final Canadian Base Shelf Prospectus relating to such Shelf Registration and secure the issuance of a receipt for such preliminary Canadian Base Shelf Prospectus (if applicable) and final Canadian Base Shelf Prospectus, and promptly thereafter take such other steps as may be necessary in order to permit the Distribution in the United States of all or any portion of the Registerable Shares of the shareholders requested to be included in such Shelf Registration; |
- 12 -
| (iii) | after the filing of any Shelf Registration Statement and Canadian Base Shelf Prospectus, the Corporation shall use its commercially reasonable efforts to keep such Shelf Registration Statement effective with the SEC and Canadian Base Shelf Prospectus effective with the applicable Canadian Securities Authorities, respectively, at all times and to re-file such Shelf Registration Statement or renew such Canadian Base Shelf Prospectus upon its expiration by filing a preliminary Canadian Base Shelf Prospectus (if applicable) and (final) Canadian Base Shelf Prospectus, and to cooperate in any shelf take-down, whether or not underwritten, by amending or supplementing any Shelf Registration Statement or Canadian Base Shelf Prospectus related to such Shelf Registration as may be reasonably requested by the Investor or as otherwise required, until such time as all Registerable Shares that could be sold pursuant to such Shelf Registration Statement and Canadian Base Shelf Prospectus have been sold, are no longer outstanding or otherwise cease to be “Registerable Shares”; and |
| (iv) | for so long as the Investor meets the 10% Threshold and at any time that a Shelf Registration Statement and Canadian Base Shelf Prospectus are effective, if the Investor delivers a written notice to the Corporation stating that it intends to effect an underwritten public offering of all or part of the Registerable Shares included on the Shelf Registration Statement or the Canadian Base Shelf Prospectus (a “Shelf Underwritten Offering”), then the Corporation shall file a prospectus supplement to the Shelf Registration Statement and a Canadian Shelf Prospectus Supplement as may be necessary to enable such Registerable Shares to be distributed pursuant to the Shelf Underwritten Offering, which Shelf Underwritten Offering shall be deemed a “Demand Registration” for all purposes in this Agreement. Such notice shall include substantially the same information as required by Section 2.1(c) for a Demand Registration Request and shall be considered a “Demand Registration Request” for all purposes in this Agreement, to the extent the applicable as the context may require. The Investor’s rights to request a Shelf Underwritten Offering with respect to the Registerable Shares held by the Investor shall be in addition to the other registration rights provided in this Article 2; provided that the Corporation shall not be obligated to effect any such Shelf Underwritten Offering for any of the reasons set forth in Section 2.1(d) for a Demand Registration, mutatis mutandis. In addition, the provisions of Section 2.1(e) shall apply to any Shelf Underwritten Offering, mutatis mutandis. The Corporation and the Investor shall cooperate in a timely manner in connection with any such Shelf Underwritten Offering and the procedures in Schedule A shall apply to such Shelf Underwritten Offering. |
| 2.4 | Expenses |
All Registration Expenses incident to the performance of or compliance with this Article 2 by the Parties shall be borne by the Corporation.
- 13 -
| 2.5 | Other Sales |
After receipt by the Corporation of a Request, the Corporation shall not, without the prior written consent of the Investor, authorize, issue or sell any Common Shares or Convertible Securities in any jurisdiction or agree to do so or publicly announce any intention to do so (except for Common Shares or Convertible Securities issued pursuant to any legal obligations in effect on the date of the Request or pursuant to any Incentive Plan) until the date which is the later of (a)(i) the date on which the Registration Statement has been declared effective by the SEC and (ii) the date on which a receipt is issued for the Canadian Prospectus filed in connection with such Demand Registration, and (b) the completion of the offering contemplated by the Demand Registration; provided, however, that the Corporation further agrees to execute such agreements as may be reasonably requested by the underwriters in connection with any underwritten offering effected pursuant to this Article 2, which agreements may subject the Corporation to a longer lock-up period.
| 2.6 | No Change or Subordination |
The Corporation shall not enter into any agreement, take any action, or permit any change to occur, with respect to its securities that violates or subordinates the rights granted to the Investor hereunder.
| 2.7 | Preparation; Reasonable Investigation |
In connection with the preparation and filing of any Prospectus as herein contemplated, the Corporation shall give the Investor, its underwriters for an underwritten offering or agents for an agency offering, and their respective counsel, auditors and other Representatives, the opportunity to participate in the preparation of such documents and each amendment thereof or supplement thereto, and shall insert therein such material, furnished to the Corporation in writing, which in the reasonable judgment of the Investor and its counsel should be included. The Corporation shall give the Investor and the underwriters or agents such reasonable and customary access to the books and records of the Corporation and its Subsidiaries and such reasonable and customary opportunities to discuss the business of the Corporation with its officers and auditors as shall be necessary in the reasonable opinion of the Investor, such underwriters or agents and their respective counsel. The Corporation shall cooperate with the Investor and its underwriters or agents in the conduct of all reasonable and customary due diligence which the Investor, such underwriters or agents and their respective counsel may reasonably require in order to conduct a reasonable investigation for purposes of establishing a due diligence defence as contemplated by the Applicable Securities Laws and in order to enable such underwriters or agents to execute any certificate required to be executed by them for inclusion in each such document.
- 14 -
| 2.8 | Indemnification |
| (a) | In connection with any Demand Registration, Piggyback Registration and Shelf Registration, the Corporation shall indemnify and hold harmless the Investor, each underwriter or agent involved in the Distribution of Registerable Shares thereunder, each of their respective members, directors, officers, employees, agents and managers, and each Person, if any, who controls such Investor, underwriter or agent within the meaning of the U.S. Securities Act or the U.S. Exchange Act against any losses, claims, damages, liabilities (including reasonable counsels’ fees) or Taxes (if any) (“Losses”), solidary or joint, to which the Investor, or such underwriter or agent or controlling Person or any of their directors, officers, employees, agents or managers may become subject, insofar as such Losses, (or actions in respect thereof) (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Prospectus, or any amendment or supplement thereof, (ii) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) arise out of or are based upon any violation or alleged violation by the Corporation (or any of its agents or Affiliates) of any Applicable Securities Law, and the Corporation will pay to each the Investor, underwriter, agent or controlling Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Losses may result, as such expenses are incurred; provided, however, that the Corporation shall not be liable in any such case if and to the extent that any such Losses arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by the Investor, such underwriter or agent or such controlling Person expressly for use in connection with such registration; provided further, however, that the indemnity agreement contained in this Section 2.8(a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Corporation, which consent shall not be unreasonably withheld. |
| (b) | In connection with any Demand Registration, Piggyback Registration and Shelf Registration, the Investor shall indemnify and hold harmless the Corporation, its directors, each officer who has signed the Registration Statement, and each underwriter or agent involved in the Distribution of Registerable Shares thereunder, and each Person, if any, who controls such Investor, underwriter or agent within the meaning of the U.S. Securities Act or the U.S. Exchange Act to the same extent as the indemnity referred to in clause (a) above from the Corporation to the Investor, but only to the extent that any such Losses arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by the Investor; provided, however, that the indemnity agreement contained in this Section 2.8(b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Investor, which consent shall not be unreasonably withheld; provided further, however, that in no event shall the aggregate amounts payable by the Investor by way of indemnity or contribution under Section 2.8(b) and 2.8(f) exceed the proceeds from the offering received by the Investor (net of any Selling Expenses paid by the Investor), except in the case of fraud or willful misconduct by the Investor. |
| (c) | Promptly after receipt by an indemnified party under this Section 2.8 of notice of the commencement of any action (including any governmental action) for which a Party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.8, give the indemnifying party notice of the commencement thereof. The failure to give notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Section 2.8, only to the extent that such failure materially prejudices the indemnifying party’s ability to defend such action. The failure to give notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.8. |
- 15 -
| (d) | The indemnifying party shall have the right, by notice to the indemnified party given not later than 30 days after receipt of the notice described in Section 2.8(c), to assume the control, defence, compromise or settlement of the action, provided that such assumption shall, by its terms, be without cost to the indemnified party and provided the indemnifying party acknowledges in writing its obligation to indemnify the indemnified party in accordance with the terms of this Section 2.8. |
| (e) | Upon the assumption of control of any action by the indemnifying party as set out in Section 2.8(d), the indemnifying party shall diligently proceed with the defence, compromise or settlement of the action at its sole expense, including, if necessary, employment of counsel reasonably satisfactory to the indemnified party and, in connection therewith, the indemnified party shall cooperate fully, but at the expense of the indemnifying party with respect to any out-of-pocket expenses incurred, to make available to the indemnifying party all pertinent information and witnesses under the indemnified party’s control, make such assignments and take such other steps as in the opinion of counsel for the indemnifying party are reasonably necessary to enable the indemnifying party to conduct such defence. The indemnified party shall also have the right to participate in the negotiation, settlement or defence of any action at its own expense. |
| (f) | To provide for just and equitable contribution to joint liability under the U.S. Securities Act in any case in which either: (i) any Party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Section 2.8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Section 2.8 provides for indemnification in such case, or (ii) contribution under the U.S. Securities Act may be required on the part of any Party for which indemnification is provided under this Section 2.8, then, and in each such case, such parties will contribute to the aggregate Losses, claims, damages, liabilities, or expenses to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted in such Loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission; provided, however, that, in any such case (x) the Investor will not be required to contribute any amount in excess of the public offering price of all such Registerable Shares offered and sold by the Investor (net of Selling Expenses paid by the Investor, if any), pursuant to such Registration Statement or Prospectus, and (y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the U.S. Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and provided further that in no event shall the Investor’s liability pursuant to this Section 2.8(f), when combined with the amounts paid or payable by the Investor pursuant to Section 2.8(f), exceed the proceeds from the offering received by the Investor (net of any commission paid by the Investor and net of Selling Expenses paid by the Investor, if any), except in the case of willful misconduct or fraud by the Investor. |
- 16 -
| (g) | Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control; provided, however, that any matter expressly provided for or addressed by the foregoing provisions that is not expressly provided for or addressed by the underwriting agreement shall be controlled by the foregoing provisions. |
| (h) | Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Corporation and the Investor under this Section 2.8 shall survive the completion of any offering of Registerable Shares in a registration under this Article 2, and otherwise shall survive the termination of this Agreement or any provision(s) of this Agreement. |
| 2.9 | Sale by Affiliates |
If any Registerable Shares to be sold pursuant to any Registration are owned by the Investor’s Affiliates, all references to the Investor in this Article 2 and Schedule A shall be deemed, for the purpose of such Registration, to include the Investor or any of its Affiliates.
| 2.10 | Rule 144 Compliance; Reporting |
The Corporation shall (i) use commercially reasonable best efforts to file with the SEC in a timely manner the reports required to be filed by it under the U.S. Securities Act and the U.S. Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if the Corporation is not required to file such reports, it will, upon the request of the Investor, make publicly available such necessary information for so long as necessary to permit sales that would otherwise be permitted by this Agreement pursuant to Rule 144 under the U.S. Securities Act, as such rule may be amended from time to time or any similar rule or regulation hereafter adopted by the SEC), and (ii) take such further action as the Investor may reasonably request, all to the extent required from time to time to enable the Investor to sell Registerable Shares without registration under the U.S. Securities Act in transactions that would otherwise be permitted by this Agreement and within the limitation of the exemptions provided by Rule 144 under the U.S. Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. Upon the reasonable request of the Investor, the Corporation will deliver to the Investor a written statement as to whether it has complied with such requirements and, if not, the specifics thereof. The Corporation shall also use commercially reasonable best efforts to comply with applicable Canadian Securities Laws and Exchange requirements, including continuous and timely disclosure obligations under NI 51-102 and NI 43-101 and provide the Investor, so long as the Investor owns Registerable Shares, promptly upon request, a written statement of the Chief Executive Officer or the Chief Financial Officer of the Corporation, to the best of such executive officer’s knowledge and without personal liability, as to the compliance of the Corporation with the applicable Canadian Securities Laws and Exchange requirements.
- 17 -
| 2.11 | Conflict |
Notwithstanding the foregoing, to the extent that the provisions regarding indemnification and contribution contained in the underwriting agreement entered into by the Parties in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions of the underwriting agreement shall prevail.
| 2.12 | Acting as Trustees |
| (a) | The Corporation hereby acknowledges and agrees that, with respect to this Article 2, the Investor is contracting as agent for the other Indemnified Parties referred to in Section 2.8(a). In this regard, the Investor will act as trustee for such Indemnified Parties of the covenants of the Corporation under this Article 2 with respect to such Indemnified Parties and accepts these trusts and will hold and enforce those covenants on behalf of such Indemnified Parties. |
| (b) | The Investor hereby acknowledges and agrees that, with respect to this Article 2, the Corporation is contracting on its own behalf and as agent for the other Indemnified Parties referred to in Section 2.8(b). In this regard, the Corporation will act as trustee for such Indemnified Parties of the covenants of the Investor under this Article 2 with respect to such Indemnified Parties and accepts these trusts and will hold and enforce those covenants on behalf of such Indemnified Parties. |
Article 3
AMENDMENTS
| 3.1 | Amendments and Modifications |
This Agreement may not be amended or modified except by an agreement in writing executed by the Parties.
| 3.2 | Changes in Capital of the Corporation |
At all times after the occurrence of any event which results in a change to the Common Shares or the issuance of securities in exchange therefor, this Agreement will be deemed to be amended and modified as necessary in order that it will apply with full force and effect, with appropriate changes, to all new securities into or for which the Common Shares are so changed or exchanged, respectively, and the Parties shall promptly negotiate in good faith with a view to executing and delivering a supplemental agreement giving effect to and evidencing such necessary amendments and modifications.
- 18 -
Article 4
GENERAL
| 4.1 | Application of this Agreement |
The terms of this Agreement shall apply mutatis mutandis to any shares or other securities:
| (a) | resulting from the conversion, reclassification, redesignation, subdivision, consolidation or other change to the Registerable Shares beneficially owned, controlled or directed, directly or indirectly, by the Investor; or |
| (b) | of the Corporation or any successor entity that may be received by the Investor on a merger, amalgamation, arrangement or other reorganization of or including the Corporation; |
and, prior to any action referred to in subsection (a) or (b) above being taken, the Parties shall give due consideration to any changes that may be required to this Agreement in order to give effect to the intent of this Section 4.1.
| 4.2 | Termination |
Except for Sections 4.9, 4.9, 4.10 and 4.14 and the surviving indemnification and contribution obligations as provided in Article 2 (the “Surviving Provisions”), which shall survive termination of this Agreement pursuant to this Section 4.2 and continue to be binding on the Parties for the periods set forth in the respective Surviving Provisions, this Agreement will automatically terminate upon the earliest to occur of the following events:
| (a) | the first date on which the Investor does not meet the 5% Threshold (at the end of any applicable top-up exercise period); |
| (b) | this Agreement is terminated by written agreement of the Parties; |
| (c) | written notice by the non-defaulting Party to the defaulting Party in the event the defaulting Party is in breach of any material obligation on its part under this Agreement and, where the breach is capable of remedy, is not remedied to the non-defaulting Party’s satisfaction within a reasonable period of time; and |
| (d) | the bankruptcy, dissolution or liquidation of the Corporation or any of the Subsidiaries or the making by the Corporation or any of the Subsidiaries of an assignment under the provisions of the Bankruptcy and Insolvency Act (Canada) or the taking of any proceeding by or involving the Corporation or any of the Subsidiaries under the Companies Creditors’ Arrangement Act (Canada) or any similar legislation of any jurisdiction. |
- 19 -
Neither the lapsing of the provisions in this Agreement (except for the Surviving Provisions) nor their ceasing to have effect shall affect any accrued rights or liabilities of any Party in respect of damages for non performance of any obligation under this Agreement falling due for performance prior to such lapse and cessation.
| 4.3 | Assignment |
| (a) | This Agreement is not assignable by the Investor without the Corporation’s prior written consent, other than to one or more Permitted Transferees and in compliance with Section 4.4. Any assignment to a Permitted Transferee shall not relieve the Investor of its obligations under this Agreement unless the Corporation provides written consent to such relief. |
| (b) | This Agreement is not assignable by the Corporation, except with the prior written consent of the Investor. |
| 4.4 | Permitted Transferees |
The rights of the Investor hereunder may be assigned (but only with all related obligations as set forth below) in connection with a transfer of Registerable Shares to a Permitted Transferee of the applicable Investor. Without prejudice to any other or similar conditions imposed hereunder with respect to any such transfer, no assignment permitted under the terms of this Section 4.4 will be effective unless the Permitted Transferee to which the assignment is being made, has delivered to the Corporation a written acknowledgment and agreement in form and substance reasonably satisfactory to the Corporation that the Permitted Transferee will be bound by, and will be a party to, this Agreement. Upon such an assignment, references in this Agreement to the “Investor” shall, mutatis mutandis, apply to and include reference to such Permitted Transferee. A Permitted Transferee to whom rights are transferred pursuant to this Section 4.4 may not again transfer those rights to any other Permitted Transferee, other than as provided in this Section 4.4.
| 4.5 | Co-operation |
In respect of all Distributions that occur during the term of this Agreement, the Corporation and the Investor and each of their representatives shall use reasonable commercial efforts to comply with all Applicable Securities Laws and Exchange requirements, including the execution and filing of all necessary documents and prospectus certificates and the taking of all such other steps as may be necessary under Applicable Securities Laws and Exchange requirements to qualify the Distribution. The Corporation and the Investor shall cooperate to ensure compliance with all applicable Tax law.
| 4.6 | Further Assurances |
Each Party shall provide such further documents or instruments required by any other Party as may be reasonably necessary or desirable to effect the purpose of this Agreement and carry out its provisions.
- 20 -
| 4.7 | Time of the Essence |
Time is of the essence of this Agreement. Each of the Parties shall be in default by the mere lapse of time for performing its obligations hereunder, without the necessity of further notice or delay, as contemplated by article 1594 of the Civil Code of Québec.
| 4.8 | Enurement |
This Agreement is binding upon and enures to the benefit of the Parties and their respective successors and permitted assigns.
| 4.9 | Public Notices/Press Releases |
No Party shall:
| (a) | issue any press release or otherwise make public announcements with respect to this Agreement without the consent of the other Party (which consent shall not be unreasonably withheld or delayed); or |
| (b) | make any regulatory filing with any Governmental Entity with respect thereto without prior consultation with the other Party; provided, however, that, this Section 4.9 shall be subject to each Party’s overriding obligation to make any disclosure or public regulatory filing required under Applicable Securities Laws or by applicable regulations or policies of any regulatory agency of competent jurisdiction or any stock exchange, and the Party making such requisite disclosure or regulatory filing shall use all commercially reasonable efforts to give prior oral and written notice to the other Party and reasonable opportunity to review and comment on the requisite disclosure or regulatory filing before it is made; provided, further, that, except as required by Applicable Securities Laws or by applicable regulations or policies of any regulatory agency of competent jurisdiction or any stock exchange, in no circumstance shall any such disclosure by, or public regulatory filing of, the Corporation or any of its Affiliates include the name of the Investor, or any of their respective Affiliates without the Investor’s prior written consent, in its sole discretion. |
| 4.10 | Notices to Parties |
Any notice, approval, consent, information, payment, request or other communication (in this Section, a “Notice”) to be given under or in connection with this Agreement shall be effective if in writing and (i) delivered personally, (ii) sent by e-mail, or (iii) sent by same-day or overnight courier, in each case, addressed as follows:
| (a) | if to the Corporation: |
481 rue
Brassard
Saint-Michel-des-Saints, Québec
J0K 3B0
- 21 -
| Attention: | [REDACTED: CONTACT INFORMATION] | |
| Email: | [REDACTED: CONTACT INFORMATION] | |
| Attention: | [REDACTED: CONTACT INFORMATION] | |
| Email: | [REDACTED: CONTACT INFORMATION] | |
with a copy (which shall not constitute notice) to:
Stein Monast L.L.P.
70 rue Dalhousie, Suite 300
Québec, Québec
G1R 4G2
| Attention: | [REDACTED: CONTACT INFORMATION] | |
| Email: | [REDACTED: CONTACT INFORMATION] |
| (b) | if to the Investor: |
Eni S,p.A.
Via Emilia 1
20097 San Donato Milanese (MI) - ITALY
| Attention: | [REDACTED: CONTACT INFORMATION] | |
| Email: | [REDACTED: CONTACT INFORMATION] |
with a copy (which shall not constitute notice) to:
Eni International B.V.
Strawinskylaan 1163
1077 XX Amsterdam – The Netherlands
World Trade Center | Tower Ten – 11th Floor
| Attention: | [REDACTED: CONTACT INFORMATION] | |
| Email: | [REDACTED: CONTACT INFORMATION] |
Unless otherwise specified herein, such notices or other communications shall be deemed effective (i) on the date received, if personally delivered, (ii) on the date sent if delivered by e-mail on a Business Day before 5:00 p.m. (in the jurisdiction of the recipient), or if not sent on a Business Day before such time, on the first Business Day thereafter, and (iii) two Business Days after being sent by same-day or overnight courier. Each of the Parties shall be entitled to specify a different address by giving notice in writing as aforesaid to the other Party.
An accidental omission in the giving of, or failure to give, a Notice required by this Agreement will not invalidate or affect in any way the legality of any proceeding in respect of which such Notice was or was intended to be given.
- 22 -
| 4.11 | Entire Agreement |
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether written or oral agreements between such Parties, in connection with the subject matter hereof. There are no conditions, covenants, agreements, representations, warranties or other provisions, express or implied, relating to the subject matter hereof except as specifically set forth in this Agreement.
| 4.12 | Waiver |
Any waiver of, or consent to depart from, the requirements of any provision of this Agreement shall be effective only if it is in writing and signed by the Party giving it, and only in the specific instance and for the specific purpose for which it has been given. No failure on the part of any Party to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver of such right. No single or partial exercise of any such right shall preclude any other or further exercise of such right or the exercise of any other right.
| 4.13 | Consent |
Where a provision of this Agreement requires an approval or consent by a Party and written notification of such approval or consent is not delivered within the applicable time in accordance with this Agreement, then the Party whose consent or approval is required shall be conclusively deemed to have withheld its approval or consent.
| 4.14 | Governing Law |
This Agreement shall be construed and governed by the laws of the Province of Québec and the federal laws of Canada applicable therein without regard to conflict of law principles that would result in the application of the laws of any other jurisdiction.
| 4.15 | Severability |
If any term or other provision of this Agreement shall be determined by a court, administrative agency or arbitrator in any jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not render the entire Agreement invalid and shall not affect the validity, legality or enforceability of such term or other provision in any other jurisdiction. Rather, this Agreement shall be construed as if not containing the particular invalid, illegal or unenforceable provision, and all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent permitted under applicable law.
- 23 -
| 4.16 | Counterparts |
This Agreement may be executed in separate counterparts, each of which shall be deemed an original and shall have the same force and effect as an original, and all of which, when taken together, shall constitute one and the same agreement. Delivery of an executed signature page to this Agreement by a Party by electronic transmission shall be as effective as delivery of a manually executed copy of this Agreement by such Party.
| 4.17 | Language |
The Parties confirm their express wish that this Agreement and all related documents be drafted in the English language. Les parties confirment leur volonté expresse que la présente convention et tous les documents s’y rattachant soient rédigés en langue anglaise.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF the Parties have caused this Agreement to be duly executed as of the date first above written.
| NOUVEAU MONDE GRAPHITE INC. | ||
| Per: | (s) Eric Desaulniers | |
| Name: Eric Desaulniers | ||
| Title: President and Chief Executive Officer | ||
| ENI INTERNATIONAL B.V. | ||
| Per: | (s) Paolo Conte | |
| Name: Paolo Conte | ||
| Title: Head of Corporate Affairs | ||
[Signature page to Registration Rights Agreement]
SCHEDULE A
REGISTRATION RIGHTS PROCEDURES
| 1. | Upon receipt of a Request from the Investor, the Corporation shall use its reasonable best efforts to effect the Distribution of Registerable Shares of the Investor, and pursuant thereto the Corporation shall use its reasonable best efforts to as expeditiously as possible: |
| (a) | following the Corporation’s receipt of the Request relating to a Demand Registration, Piggyback Registration or Shelf Registration (and in any event within 30 days of a Request relating to a Shelf Registration) in respect of a Distribution in the United States, as applicable, prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registerable Shares by the Investor or by the Corporation in accordance with the intended method or methods of distribution thereof (which may be a Registration Statement filed on Form F-10 under the MJDS (if then available)), make all required filings with FINRA, and, if such Registration Statement is not automatically effective upon filing, use its reasonable best efforts to cause such Registration Statement to be declared effective as soon as practicable and to remain effective as provided herein; provided, however, before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including Free Writing Prospectuses) and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a Demand Registration, the Corporation shall furnish or otherwise make available to the Investor, its counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of the Investor and counsel, and such other documents reasonably requested by the Investor and counsel, including any comment letter from the SEC, and, if requested by the Investor or counsel, provide the Investor or counsel, as applicable, reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the U.S. Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors. The Corporation will include comments to any Registration Statement and any amendments or supplements thereto from the Investor or its counsel, or the managing underwriters, if any, as reasonably requested on a timely basis; |
| (b) | prepare and file with the SEC such amendments, including post-effective amendments, and supplements to such Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and U.S. Exchange Act reports as may be necessary to keep such Registration Statement continuously effective during the applicable period provided herein and comply in all material respects with the provisions of the U.S. Securities Act with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus to be supplemented by any prospectus supplement as may be necessary to comply with the provisions of the U.S. Securities Act with respect to the disposition of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the U.S. Securities Act in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the Investor set forth in such Registration Statement or otherwise cease to be “Registerable Shares”; |
- A-2 -
| (c) | prepare and file with the Canadian Securities Authorities as soon as practicable following the Corporation’s receipt of the Request, a Canadian Prospectus relating to the applicable Demand Registration, Piggyback Registration or Shelf Registration and any other documents reasonably necessary, including amendments and supplements in respect of those documents, to permit the Distribution and, in so doing, act as expeditiously as is practicable and in good faith to settle all deficiencies and obtain those receipts and clearances and provide those undertakings and commitments as may be reasonably required by the applicable Canadian Securities Authorities, all as may be necessary to permit the Distribution of such securities in compliance with applicable Canadian Securities Laws and Exchange requirements, and furnish to the Investor and the managing underwriters or underwriters, if any, copies of such Canadian Prospectuses and any amendments or supplements in the form filed with the Canadian Securities Authorities, promptly after the filing of such Canadian Prospectuses, amendments or supplements; |
| (d) | subject to Applicable Securities Laws, keep the Prospectus effective until the Distribution as described in the Prospectus has been completed; |
| (e) | notify the Investor and the managing underwriter(s) or managing agent(s), if any, and (if requested) confirm such advice in writing, as soon as practicable after notice thereof is received by the Corporation (A) when the Registration Statement, Prospectus or any amendment thereto has been filed and declared effective, and, to furnish the Investor and managing underwriter(s) or managing agent(s) with copies thereof, (B) of any request by the SEC for amendments to the Registration Statement or related Prospectus or for additional information, (C) of any request by the Canadian Securities Authorities for amendments to the Canadian Prospectus or for additional information, (D) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceedings for that purpose, (E) of the issuance by the Canadian Securities Authorities of any cease trade order relating to the Canadian Prospectus or any order preventing or suspending the use of any Canadian Prospectus or the initiation or threatening for any proceedings for such purposes, and (F) of the receipt by the Corporation of any notification with respect to the suspension of the registration of the Registerable Shares for Distribution in any jurisdiction or the initiation or threatening of any proceeding for such purpose; |
- A-3 -
| (f) | promptly notify the Investor and the managing underwriter(s), if any, (A) at any time the representations and warranties contemplated by any underwriting agreement, securities/sale agreement, or other similar agreement, relating to the offering shall cease to be true and correct in all material respects, and (B) the happening of any event as a result of which the Registration Statement or Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which it was made) not misleading or, if for any other reason it shall be necessary during such time period to amend or supplement the Registration Statement or Prospectus in order to comply with the Applicable Securities Laws and Exchange requirements and, in either case as promptly as practicable thereafter, prepare and file with the SEC or Canadian Securities Authorities and furnish without charge to the Investor and the managing underwriter(s) or managing agent(s), if any, a supplement or amendment to such Registration Statement or Prospectus, which shall correct such statement or omission or effect such compliance; |
| (g) | (i) use its commercially reasonable best efforts to comply with all applicable rules and regulations of the SEC and the U.S. Securities Act or any successor rule thereto; and (ii) use its commercially reasonable best efforts to comply with applicable Canadian Securities Laws and Exchange requirements, including continuous and timely disclosure obligations under NI 51-102 and NI 43-101 (including with respect to the form and content of the documents to be prepared and filed thereunder); |
| (h) | use commercially reasonable best efforts to prevent the issuance of any stop order, cease trade order or other order suspending the use of any Registration Statement or Prospectus or suspending any registration of the Registerable Shares covered by the Registration Statement or Prospectus and, if any such order is issued, to obtain the withdrawal of any such order; |
| (i) | furnish to the Investor and each managing underwriter or managing agent, without charge, as applicable, one executed copy and as many conformed copies as they may reasonably request, of the Registration Statement and Prospectus and any amendment thereto, including financial statements and schedules, all documents incorporated therein by reference, and provide the Investor and its counsel with an opportunity to review, and provide comments to the Corporation on the Registration Statement and Prospectus; |
| (j) | deliver to the Investor and the underwriters for an underwritten offering or the agents for an agency offering, if any, without charge, as many copies of the Registration Statement and Prospectus and any amendment or supplement thereto as such Persons may reasonably request (it being understood that the Corporation consents to the use of the Registration Statement and Prospectus or any amendment thereto by the Investor and the underwriters or agents, if any, in connection with the Distribution of the Registerable Shares covered by the Registration Statement or Prospectus or any amendment or supplement thereto) and such other documents as the Investor may reasonably request in order to facilitate the Distribution of the Registerable Shares by such Person; |
- A-4 -
| (k) | use its commercially reasonable best efforts to register, and cooperate with the Investor, the managing underwriter or managing agent, if any, and their respective counsel in connection with the registration of such Registerable Shares for Distribution in compliance with the Applicable Securities Laws and Exchange requirements as any such Person, underwriter or agent reasonably requests in writing; and |
| (l) | in connection with any underwritten offering or agency offering, enter into customary agreements, including an underwriting agreement or agency agreement, as applicable, such agreement to be satisfactory in substance and form to each of the Investor and the Corporation and the underwriters or agents, each acting reasonably, and to contain such representations and warranties by the Corporation and such other terms as are generally prevailing in agreements of these types, it being understood for the avoidance of doubt that the Investor shall not be required to make any representations or warranties to or agreements with the Corporation or the underwriters’ or agents’ other than representations, warranties or agreements regarding the Investor and the Corporation’s intended method of distribution and any other representation required by Law or as are generally prevailing in such underwriting or agency agreements for secondary offerings, as the case may be, and furnish to the underwriters or agents and the Investor, among other things: |
| (i) | an opinion of counsel representing the Corporation for the purposes of such registration, addressed to the underwriters or agents, in form and substance as is customarily given by company counsel to the underwriters in an underwritten public offering or agents in an agency public offering; |
| (ii) | such corporate certificates, satisfactory to the managing underwriter or underwriters acting reasonably, as are customarily furnished in securities offerings, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such other matters as the managing underwriter or underwriters may reasonably request; and |
| (iii) | a “comfort letter” dated such date from the independent public accountants retained by the Corporation, addressed to the underwriters or agents, in form and substance as is customarily given in an underwritten or agency public offering, as applicable, provided that the Investor has made such representations and furnished such undertakings as the independent public accountants may reasonably require; |
| (m) | as promptly as practicable after filing with the SEC or Canadian Securities Authorities, any document which is incorporated by reference into the Registration Statement or Prospectus, provide copies of such document to counsel for the Investor and to the managing underwriters or managing agents, if any; |
- A-5 -
| (n) | provide a transfer agent and registrar for all Registerable Shares registered pursuant to this Agreement and provide a CUSIP number for all Registerable Shares, not later than the closing date of the offering; |
| (o) | make reasonably available its employees and personnel for participation in “road shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters or agents (taking into account the needs of the Corporation’s businesses and the requirements of the marketing process) in the marketing of Registerable Shares in any underwritten or agency offering; |
| (p) | promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or Prospectus, provide copies of such document to counsel for the Investor and to each lead underwriter or lead agent, if any, and make the Corporation’s Representatives reasonably available for discussion of such document and make such changes in such document concerning the Investor prior to the filing thereof as counsel for the Investor or underwriters or agents may reasonably request; |
| (q) | cooperate with the Investor and the lead underwriter or lead agent, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registerable Shares to be sold, and cause such Registerable Shares to be issued in such denominations and registered in such names in accordance with the underwriting agreement prior to any sale of Registerable Shares to the underwriters or agents or, if not an underwritten or agency offering, in accordance with the instructions of the sellers of Registerable Shares at least three (3) Business Days prior to any sale of Registerable Shares and instruct any transfer agent and registrar of Registerable Shares to release any stop transfer orders in respect thereof; |
| (r) | cooperate with the Investor and each underwriter or agent participating in the disposition of such Registerable Shares and their respective counsel in connection with any filings required to be made with FINRA; |
| (s) | in the case of a Distribution under a Registration Statement, otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC (including Regulation M), and make available, as soon as reasonably practicable (but no more than 18 months after the effective date of the Registration Statement or such later date as provided by Section 11(d) of the U.S. Securities Act), an earnings statement covering the period of at least 12 months beginning with the first day of the Corporation’s first full calendar quarter after the effective date of the Registration Statement (or such later date as provided by Section 11(d) of the U.S. Securities Act), which earnings statement will satisfy the provisions of Section 11(a) of the U.S. Securities Act and Rule 158 thereunder; |
- A-6 -
| (t) | in the case of a Distribution under a Canadian Prospectus, otherwise use its commercially reasonable efforts to comply with OSC Rule 48-501 – Trading During Distributions, Formal Bids and Share Exchange Transactions or Section 7.7 of the Universal Market Integrity Rules of the Canadian Investment Regulatory Organization; |
| (u) | arrange for its interim or quarterly financial statements or reports to be prepared and filed pursuant to the Exchange Act and NI 51-102 to be reviewed by its independent professional chartered accountants prior to such filing for purposes of the incorporation thereof by reference in any Prospectus in accordance with Applicable Securities Laws; |
| (v) | take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the Distribution of such Registerable Shares; and |
| (w) | take such other actions and execute and deliver such other documents as may be reasonably necessary to give full effect to the rights of the Investor under this Agreement. |
| 2. | The Corporation may require the Investor, as to which any Registration is being effected, to furnish to the Corporation such information regarding the Distribution of such securities and such other information relating to the Investor and its ownership of Registerable Shares as the Corporation may from time to time reasonably request in writing. The Investor agrees to furnish such information to the Corporation and to cooperate with the Corporation as necessary to enable the Corporation to comply with the provisions of this Agreement. The Investor shall notify the Corporation as soon as reasonably practicable upon the occurrence of any event as a result of which any of the aforesaid Prospectuses includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a Canadian Prospectus, in light of the circumstances under which they are made) not misleading. |