AGENCY AGREEMENT

Exhibit 10.1

COMMON SHARES

VISTA GOLD CORP.

AGENCY AGREEMENT

October 30, 2006

SPROTT SECURITIES (USA) LIMITED

on behalf of the several Agents

named in Schedule E hereto

c/o Sprott Securities Inc.

Royal Bank Plaza, South Tower

Suite 2750

200 Bay Street

Toronto, ON

M5J 2J2

Ladies/Gentlemen:

In furtherance of a letter agreement dated October 4, 2006 (the “Letter Agreement”) between Vista Gold Corp. (the “Company”) and Sprott Securities (USA) Limited (“Sprott”), the Company agreed to, among other things, appoint Sprott as lead agent of the Company for the purpose of offering for sale, on a best efforts basis (the “Offering”), of up to 3,764,705 of its common shares (the “Shares”). Accordingly, subject to the terms and conditions herein contained, the Company hereby appoints Sprott together with the other agents named in Schedule E to this agreement (the “Agents”) as agents of the Company for the Offering.  Sprott is acting as lead agent (the “Lead Agent”) in connection with the Offering.

The Company has prepared and filed a preliminary short form base shelf prospectus dated September 11, 2006 (the “Preliminary Base Shelf Prospectus”) and a final short form base shelf prospectus dated October 2, 2006 (the “Final Base Shelf Prospectus”) in respect of up to US$32,000,000 of the Company’s common shares with the British Columbia Securities Commission (the “Reviewing Authority”) and the Canadian securities regulatory authorities (collectively, the “Qualifying Authorities”) in each of Alberta, British Columbia, Manitoba and Ontario (the “Qualifying Provinces”); and the Reviewing Authority has issued an MRRS decision document under National Policy 43-201-Mutual Reliance Review System for Prospectuses and Annual Information Forms (an “MRRS Decision Document”) on behalf of the Qualifying Authorities for each of the Preliminary Base Shelf Prospectus and the Final Base Shelf Prospectus.  The term “Canadian Base Prospectus” means the Final Base Shelf Prospectus, including documents incorporated therein by reference, at the time the Reviewing Authority issued an MRRS Decision Document with respect thereto in accordance with the rules and procedures established under all applicable securities laws in each of the Qualifying Provinces and the respective regulations and rules under such laws together with applicable published policy statements and instruments of the securities regulatory authorities in the Qualifying Provinces (“Canadian Securities Laws”), including National Instrument 44-101 - Short Form Prospectus Distributions and National Instrument 44-102 - Shelf Distributions (together, the “Shelf Procedures”).  The term “Canadian Preliminary Prospectus” means the prospectus supplement (the “Canadian Preliminary Prospectus Supplement”) relating to the Offering, which excluded certain pricing information, filed with the

 

Canadian Qualifying Authorities on October 17, 2006, together with the Canadian Base Prospectus, including all documents incorporated therein by reference. The term “Canadian Prospectus” means the prospectus supplement (the “Canadian Prospectus Supplement”) relating to the Offering, which includes the pricing information omitted from the Canadian Preliminary Prospectus, to be dated the date hereof and filed with the Qualifying Authorities in accordance with the Shelf Procedures, together with the Canadian Base Prospectus.

The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement under the United States Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder (the “1933 Act Regulations”), on Form S-3 (Registration No. 333-136980) on August 29, 2006, as amended by Amendment No. 1 thereto filed with the Commission on September 27, 2006, providing for the registration of up to 4,000,000 of the Company’s common shares.  Such registration statement, as amended on September 27, 2006, in the form previously delivered to you, including exhibits to such registration statement and all documents incorporated by reference in the prospectus contained therein, became effective pursuant to Rule 461 under the 1933 Act on October 4, 2006.  Such registration statement at any given time, as amended to such time, including any exhibits and all documents incorporated therein by reference, and the documents otherwise deemed to be a part thereof or included therein by 1933 Act Regulations, is referred to herein as the “Registration Statement”.  The Registration Statement at the time it originally became effective is referred to herein as the “Original Registration Statement”.  The prospectus included in the Original Registration Statement is referred to herein as the “U.S. Base Prospectus”.  The preliminary prospectus supplement relating to the Shares filed with the Commission on October 17, 2006 pursuant to Rule 424(b) of the 1933 Act (the “U.S. Preliminary Prospectus Supplement”) together with the U.S. Base Prospectus is hereafter referred to as the “U.S. Preliminary Prospectus”.  The prospectus supplement relating to the Shares, to be filed with the Commission on or about October 31, 2006 pursuant to Rule 424(b) of the 1933 Act (the “U.S. Prospectus Supplement”) together with the U.S. Base Prospectus is hereafter referred to as the “U.S. Prospectus”.  The U.S. Preliminary Prospectus relating to the Shares, as amended or supplemented immediately prior to the Applicable Time (as defined below), is hereafter referred to as the “Pricing Prospectus”.  Any Issuer General Use Free Writing Prospectus (as defined below) issued at or prior to the Applicable Time and the Pricing Prospectus, taken together, are hereafter referred to collectively as the “Pricing Disclosure Package”.  Any reference herein to any U.S. Preliminary Prospectus or the U.S. Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Form S-3 that were filed with the Commission on or before the date of such U.S. Preliminary Prospectus or U.S. Prospectus, as the case may be and the documents otherwise deemed to be a part thereof or included therein by 1933 Act Regulations; and any reference herein to any “amendment” or “supplement” to any U.S. Preliminary Prospectus or the U.S. Prospectus shall be deemed to refer to and include (i) the filing of any document with the Commission after the date of such U.S. Preliminary Prospectus or U.S. Prospectus, as the case may be, which is incorporated therein by reference or is otherwise deemed to be a part thereof or included therein by 1933 Act Regulations and (ii) any such document so filed.

All references in this agreement to the Registration Statement, any U.S. Preliminary Prospectus or the U.S. Prospectus, or any amendments or supplements to any of the foregoing, shall be deemed to include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).

In this agreement:

(a)                                  “Agents” means the agents named in Schedule E to this agreement;

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(b)                                 “Agents’ Personnel” has the meaning ascribed thereto in paragraph 7(a) of this agreement;

(c)                                  “Agent Warrants” has the meaning ascribed thereto in paragraph 4(b) of this agreement;

(d)                                 “Agreements and Instruments” has the meaning ascribed thereto in paragraph 2(s) of this agreement;

(e)                                  “amendment” has the meaning ascribed thereto in the third paragraph of this agreement;

(f)                                    “Applicable Time” means 5:00 p.m. (Toronto time) on the date of this agreement or such other time as agreed to by the Company and the Lead Agent;

(g)                                 “Arrangement” means the proposed plan of arrangement to be carried out under the provisions of the Business Corporations Act (Yukon) pursuant to an arrangement and merger agreement dated September 22, 2006 among the Company, Allied Nevada Gold Corp., Carl Pescio and Janet Pescio;

(h)                                 “Business Day” means a day which is not a Saturday, a Sunday or a statutory or civic holiday in the City of Toronto;

(i)                                     “Canadian Base Prospectus” has the meaning ascribed thereto in the second paragraph of this agreement;

(j)                                     “Canadian GAAP” has the meaning ascribed thereto in Section 2(j) of this agreement;

(k)                                  “Canadian Preliminary Prospectus” has the meaning ascribed thereto in the second paragraph of this agreement;

(l)                                     “Canadian Preliminary Prospectus Supplement” has the meaning ascribed thereto in the second paragraph of this agreement;

(m)                               “Canadian Prospectus” has the meaning ascribed thereto in the second paragraph of this agreement;

(n)                                 “Canadian Prospectus Supplement” has the meaning ascribed thereto in the second paragraph of this agreement;

(o)                                 “Canadian Securities Laws” has the meaning ascribed thereto in the second paragraph of this agreement;

(p)                                 “Closing” means the completion of the issue and sale by the Company of Shares pursuant to this agreement;

(q)                                 “Closing Date” means November 7, 2006 or such later date as the Company and the Agents may agree upon in writing, provided that in no event shall the Closing Date be later than November 30, 2006;

(r)                                    “Closing Time” means 8:30 a.m. (Toronto time) on the Closing Date or such other time on the Closing Date as the Company and the Agents may agree;

(s)                                  “Commission” has the meaning ascribed thereto in the third paragraph of this agreement;

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(t)                                    “Common Shares” means the common shares in the capital of the Company;

(u)                                 “Communication” has the meaning ascribed thereto in paragraph 17(a) of this agreement;

(v)                                 “Company” means Vista Gold Corp.;

(w)                               “Distribution” means “distribution” of the Shares or “distribution to the public” of the Shares as those terms are defined in applicable securities legislation;

(x)                                   “EDGAR” has the meaning ascribed thereto in the fourth paragraph of this agreement;

(y)                                 “Environmental Laws” has the meaning ascribed thereto in paragraph 2(aa) of this agreement;

(z)                                   “Exchanges” means the Toronto Stock Exchange (referred to herein as the “TSX”) and the American Stock Exchange (referred to herein as the “AMEX”);

(aa)                            “Final Base Shelf Prospectus” has the meaning ascribed thereto in the second paragraph of this agreement;

(bb)                          “Final Filing Time” has the meaning ascribed thereto in paragraph 1(a) of this agreement;

(cc)                            “Financial Information” means (1) the consolidated comparative financial statements of the Company for (i) the year ended December 31, 2005, the notes thereto and the auditors’ report thereon, and (ii) the six months ended June 30, 2006 and the notes thereto, (2) the Company’s Management’s Discussion and Analysis of Financial Condition and Results of Operations (i) for the year ended December 31, 2005 and (ii) for the six months ended June 30, 2006, and (3) any other financial statements, incorporated or deemed to be incorporated by reference in the Canadian Prospectus, the U.S. Prospectus or the Pricing Disclosure Package and any financial data derived from the foregoing and disclosed in the Canadian Prospectus, the U.S. Prospectus or the Pricing Disclosure Package;

(dd)                          “Form 10-K” means the Annual Report of the Company for the year ended December 31, 2005 on Form 10-K filed pursuant to the 1934 Act with the Commission on March 31, 2006, as amended by Amendment No. 1 to the Company’s Annual Report on Form 10-K filed with the Commission on June 13, 2006 (including the documents incorporated by reference therein);

(ee)                            “Governmental Licenses” has the meaning ascribed thereto in paragraph 2(ff) of this agreement;

(ff)                                “Hazardous Materials” has the meaning ascribed thereto in paragraph 2(aa) of this agreement;

(gg)                          “Indemnified Party” means a person or company who has the benefit of the indemnity provisions of Section 7 of this agreement;

(hh)                          “Indemnifying Party” means a party to this agreement which is under an obligation to indemnify an Indemnified Party under the indemnity provisions of Section 7 of this agreement;

(ii)                                  “Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended;

(jj)                                  “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Shares that (i) is required to

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be filed with the Commission by the Company, (ii) is a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Shares or of the Offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g);

(kk)                            “Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors which is specified in Schedule F hereto;

(ll)                                  “Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus;

(mm)                      “Lead Agent” means Sprott Securities (USA) Limited;

(nn)                          “Letter Agreement” has the meaning ascribed thereto in the first paragraph of this agreement;

(oo)                          “MRRS Decision Document” has the meaning ascribed thereto in the second paragraph of this agreement;

(pp)                          “Material Adverse Effect” has the meaning ascribed thereto in paragraph 2(k) of this agreement;

(qq)                          “misrepresentation”, “material fact” and “material change” have the respective meanings ascribed thereto in the Securities Act (British Columbia);

(rr)                                “Money Laundering Laws” has the meaning ascribed thereto in paragraph 2(bb) of this agreement;

(ss)                            “NASD” means the National Association of Securities Dealers, Inc.;

(tt)                                “OFAC” has the meaning ascribed thereto in paragraph 2(bb) of this agreement;

(uu)                          “Offering” has the meaning ascribed thereto in the first paragraph of this agreement;

(vv)                          “Original Registration Statement” has the meaning ascribed thereto in the third paragraph of this agreement;

(ww)                      “Permitted Free Writing Prospectus” has the meaning ascribed thereto in paragraph 3(f) of this agreement;

(xx)                              “Preliminary Base Shelf Prospectus” has the meaning ascribed thereto in the second paragraph of this agreement;

(yy)                          “Pricing Disclosure Package” has the meaning ascribed thereto in the third paragraph of this agreement;

(zz)                              “Pricing Prospectus” has the meaning ascribed thereto in the third paragraph of this agreement;

(aaa)                      “Purchasers” has the meaning ascribed thereto in paragraph 3(b) of this agreement;

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(bbb)                   “Qualifying Authorities” has the meaning ascribed thereto in the second paragraph of this agreement;

(ccc)                      “Qualifying Provinces” has the meaning ascribed thereto in the second paragraph of this agreement;

(ddd)                   “Repayment Event” has the meaning ascribed thereto in paragraph 2(s) of this agreement;

(eee)                      “Registration Statement” has the meaning ascribed thereto in the third paragraph of this agreement;

(fff)                            “Reviewing Authority” means the British Columbia Securities Commission;

(ggg)                   “Sarbanes-Oxley Act” means the United States Sarbanes-Oxley Act of 2002;

(hhh)                   “SEDAR” has the meaning ascribed thereto in paragraph 2(d) of this agreement;

(iii)                               “Shares” has the meaning ascribed thereto in the first paragraph of this agreement;

(jjj)                               “Shelf Procedures” has the meaning ascribed thereto in the second paragraph of this agreement;

(kkk)                      “Sprott” means Sprott Securities (USA) Limited;

(lll)                               “Subsidiaries” means the subsidiaries of the Company within the meaning ascribed thereto under the Business Corporations Act (Yukon);

(mmm)             “supplement” has the meaning ascribed thereto in the third paragraph of this agreement;

(nnn)                   “Supplementary Material” means collectively any amendment to the Canadian Prospectus or Registration Statement, any amended or supplemented prospectus or auxiliary material, information, evidence, return, report, application, statement or document that may be filed by or on behalf of the Company under Canadian Securities Laws, the 1933 Act or the 1934 Act prior to the Closing Time or, where such documents are deemed to be incorporated by reference into the Canadian Prospectus, Registration Statement or U.S. Prospectus, prior to the expiry of the period of distribution of the Shares;

(ooo)                   “this agreement” or “the agreement” means the agreement resulting from the acceptance by the Company of the offer made by the Agents by this letter;

(ppp)                   “U.S. Base Prospectus” has the meaning ascribed thereto in the third paragraph of this agreement;

(qqq)                   “U.S. GAAP” has the meaning ascribed thereto in paragraph 2(j) of this agreement;

(rrr)                            “U.S. Preliminary Prospectus” has the meaning ascribed thereto in the third paragraph of this agreement;

(sss)                      “U.S. Preliminary Prospectus Supplement” has the meaning ascribed thereto in the third paragraph of this agreement;

(ttt)                            “U.S. Prospectus” has the meaning ascribed hereto in the third paragraph of this agreement;

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(uuu)                   “U.S. Prospectus Supplement” has the meaning ascribed thereto in the third paragraph of this agreement;

(vvv)                   “United States” means the United States of America, its territories and possessions, any state of the United States and the District of Columbia;

(www)             “1933 Act” has the meaning ascribed in the second paragraph of this agreement;

(xxx)                         “1933 Act Regulations” has the meaning ascribed thereto in the second paragraph of this agreement; and

(yyy)                   “1934 Act” means the United States Securities Exchange Act of 1934, as amended.

The following schedules are attached to and form part of this agreement:

Schedule A	-	List of Subsidiaries
Schedule B	-	Form of Opinion of Canadian Counsel
Schedule C	-	Form of Opinion of U.S. Counsel
Schedule D	-	Form of Opinion of Nevada Counsel
Schedule E		Agents
Schedule F	-	Issuer General Use Free Writing Prospectus

 

TERMS AND CONDITIONS

SECTION 1.  Covenants of the Company. The Company covenants with each Agent as follows:

(a)                                  Filing of Canadian Prospectus Supplement and US. Prospectus Supplement. The Company will (1) as soon as possible and in any event no later than 5:00 p.m. (Toronto time) on October 31, 2006 (the “Final Filing Time”), prepare and file with each Qualifying Authority, the Canadian Prospectus Supplement, and (2) prepare and file with the Commission, the U.S. Prospectus Supplement within the time period prescribed by Rule 424 under the 1933 Act; provided that the Company will use commercially reasonable efforts to file the Canadian Prospectus Supplement with each Qualifying Authority before 9:30 a.m. (Toronto time) on October 31, 2006.

(b)                                 Compliance with Securities Regulations and Commission Requests. During the period of the distribution of the Shares, the Company will notify the Agents promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall have been filed with the Commission or shall have become effective, and when any supplement to the U.S. Base Prospectus or the Canadian Base Prospectus or any amended U.S. Prospectus, amended Canadian Prospectus or any Supplementary Material shall have been filed, (ii) of any request by any Qualifying Authority to amend or supplement the Canadian Prospectus, or for additional information, or of any request by the Commission to amend the Registration Statement or to amend or supplement the U.S. Preliminary Prospectus or the U.S. Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any of the U.S. Base Prospectus, the Canadian Base Prospectus, the U.S. Preliminary Prospectus, the U.S. Prospectus or the Canadian Prospectus, or the suspension of the qualification of the Shares or the offering or sale in any jurisdiction, or the institution or, to the knowledge of the Company, threatening of any proceedings for any such purpose, and (iv) of the issuance by any

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Qualifying Authority or either Exchange of any order having the effect of ceasing or suspending the distribution of the Shares or the trading in the Common Shares, or of the institution or, to the knowledge of the Company, threatening of any proceedings for any such purpose. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use or such order ceasing or suspending the distribution of the Shares or the trading in the Common Shares and, if any such order is issued, to obtain the lifting thereof at the earliest possible time.

(c)                                  Filing of Amendments. The Company will not at any time file or make any amendment or supplement to the Registration Statement, the U.S. Preliminary Prospectus, the U.S. Prospectus or the Canadian Prospectus, any Supplementary Material or Issuer Free Writing Prospectus, of which the Agents shall not have previously been advised and furnished a copy or to which the Agents shall have objected promptly after reasonable notice thereof.

(d)                                 Delivery of Filed Documents. The Company has furnished or will deliver to each of the Agents a copy of the Canadian Prospectus, and any Supplementary Material, approved, signed and certified as required by Canadian Securities Laws and signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein or otherwise deemed to be a part thereof) and signed copies of all consents and certificates of experts.

(e)                                  Delivery of Prospectuses. The Company has furnished or will deliver to each Agent, without charge, as many copies of each U.S. Preliminary Prospectus Supplement, the Canadian Preliminary Prospectus Supplement, the U.S. Base Prospectus and the Canadian Base Prospectus as such Agents have reasonably requested, and the Company hereby consents to the use of such copies for the purposes permitted by the 1933 Act. The Company will deliver to each Agent, without charge, during the period when the U.S. Prospectus is required to be delivered under the 1933 Act or the 1934 Act and during the period when the Canadian Prospectus is required to be delivered under Canadian Securities Laws such number of copies of the U.S. Prospectus and Canadian Prospectus, respectively (each as supplemented or amended), as such Agent may reasonably request.

(f)                                    Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, 1933 Act Regulations and Canadian Securities Laws so as to permit the completion of the distribution of the Shares as contemplated in this agreement and in the U.S. Prospectus and the Canadian Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Shares any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Agents or for the Company, to amend the Registration Statement, amend or supplement the U.S. Base Prospectus or the Canadian Base Prospectus or amend the U.S. Prospectus or the Canadian Prospectus in order that the U.S. Preliminary Prospectus, the U.S. Prospectus or the Canadian Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the U.S. Base Prospectus or the Canadian Base Prospectus or amend or supplement the U.S. Preliminary Prospectus, the U.S. Prospectus or the Canadian Prospectus in order to comply with the requirements of the 1933 Act, 1933 Act Regulations or Canadian Securities Laws, the Company will promptly prepare and file with the Commission and with the Qualifying Authorities, subject to paragraph 1(c) of this agreement, such amendment or supplement as may be necessary to correct such statement or

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omission or to make the Registration Statement, the U.S. Preliminary Prospectus, the U.S. Prospectus or the Canadian Prospectus, as the case may be, comply with such requirements, and the Company will furnish to the Agents such number of copies of such amendment or supplement as the Agents may reasonably request. If at any time following the issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Pricing Prospectus or any preliminary prospectus or any prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Lead Agent and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.

(g)                                 Rule 158. The Company will file, on a timely basis, such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Agents the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act and the regulations thereunder.

(h)                                 Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the U.S. Preliminary Prospectus and the Canadian Preliminary Prospectus under “Use of Proceeds.”

(i)                                     Restriction on Sale of Shares. During a period of 90 days from the Closing Date, the Company will not, without the prior written consent of the Lead Agent (i) directly or indirectly, offer, pledge, sell, contract to sell, 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 any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares or file any registration statement under the 1933 Act with respect to any of the foregoing, (ii) enter into any swap or any other agreement or in respect of the foregoing, any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise, or (iii) publicly announce an intention to do any of the foregoing. The foregoing sentence shall not apply to (A) any Common Shares issuable upon exercise of the warrants of the Company outstanding on the date hereof, (B) the Shares to be sold hereunder, (C) any Common Shares issued or options to purchase Common Shares granted pursuant to existing employee plans of the Company referred to in the U.S. Prospectus and the Canadian Prospectus, including, without limitation, the Company’s stock option plan, (D) any Common Shares issued pursuant to any non-employee director stock option plan or dividend reinvestment plan, and (E) any securities issued in connection with the Arrangement.

(j)                                     Listing. The Company will use its best efforts to effect the listing of the Shares on the TSX and AMEX and, at the request of the Lead Agent, will request to have the Shares trade on an “when issued basis” on the TSX and AMEX as of the opening of trading on the Business Day following the date of this agreement.

(k)                                  Reporting Requirements. The Company, during the period when the U.S. Preliminary Prospectus or the U.S. Prospectus is required to be delivered under the 1933 Act or the 1934 Act in respect of the offer and sale of the Shares, will file all documents required to be filed by the Company with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and

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the rules and regulations of the Commission thereunder.

(l)                                     Delivery of Documents at the time of filing of Canadian Prospectus Supplement. The Company shall deliver to the Agents contemporaneously with or prior to the filing of the Canadian Prospectus Supplement with the Qualifying Authorities:

(i)                                     the comfort letter of its auditors, PricewaterhouseCoopers LLP, referred to in paragraph 5(k) of this agreement;

 

(ii)                                  a letter from the TSX advising the Company that approval of the conditional listing of the Shares has been granted by the TSX; and

 

(iii)                               evidence satisfactory to the Agents that the Shares will be listed on AMEX at Closing.

 

(m)                               Supplementary Material. The Company shall deliver to the Agents contemporaneously with or prior to the filing of any Supplementary Material with any Qualifying Authority or the Commission a comfort letter from PricewaterhouseCoopers LLP relating to financial information, if any, contained in the Supplementary Material that is incorporated or deemed to be incorporated by reference into the Canadian Preliminary Prospectus, the U.S. Preliminary Prospectus, the Canadian Prospectus, the U.S. Prospectus or the Registration Statement in the form and substance of the comfort letter described in subparagraph 1(l)(i) of this agreement.

(n)                                 Changes. From the date of this agreement until the end of the period of Distribution under the Canadian Prospectus and the U.S. Prospectus, the Company shall promptly notify the Agents in writing of:

(i)                                     any material change (actual, anticipated, contemplated or threatened, financial or otherwise) in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise whether or not arising in the ordinary course of business;

 

(ii)                                  any change in any fact contained in the Registration Statement, the Canadian Preliminary Prospectus, the U.S. Preliminary Prospectus, the Canadian Prospectus, the U.S. Prospectus or Supplementary Material, which change is or may be of such a nature as to render the Registration Statement, the Canadian Preliminary Prospectus, the U.S. Preliminary Prospectus, the Canadian Prospectus, the U.S. Prospectus, the Pricing Disclosure Package or Supplementary Material misleading or untrue in any material respect or result in a misrepresentation therein; or

 

(iii)                               any change in applicable laws, materially and adversely affecting, or which may materially and adversely affect, the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, the Common Shares or the Distribution under the Canadian Prospectus or the U.S. Prospectus.

 

SECTION 2. Representations and Warranties of the Company. The Company represents and warrants to the Agents as of the date hereof and as of the Closing Time and agrees with each Agent as follows:

(a)                                  Eligibility and compliance with Securities Regulatory Requirements. The Company meets the general eligibility requirements for use of a short form prospectus under National Instrument

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44-101, for use of a shelf prospectus under National Instrument 44-102 and for use of Form S-3 under the 1933 Act. Prior to the execution of this agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the 1933 Act) or used any “prospectus” (within the meaning of the 1933 Act) in connection with the offer or sale of the Shares, in each case other than the Canadian Preliminary Prospectus and the U.S. Preliminary Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the 1933 Act, assuming that such Permitted Free Writing Prospectus is accompanied or preceded by the most recent Canadian Preliminary Prospectus or U.S. Preliminary Prospectus, whichever applicable (which such most recent preliminary prospectus shall contain a price range, if so required by the 1933 Act), or the Canadian Prospectus or U.S. Prospectus, whichever applicable, as the case may be, and that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the 1933 Act, filed with the Commission), the sending or giving, by any Agent, or any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164). At the time the Registration Statement became effective under the 1933 Act and at all times subsequent thereto up to any Closing Time: (A) the Canadian Prospectus complied and will comply in all material respects with Canadian Securities Laws as interpreted and applied by the Qualifying Authorities; (B) the Registration Statement, the U.S. Preliminary Prospectus and the U.S. Prospectus, and any amendments or supplements thereto complied and will comply in all material aspects with the requirements of the 1933 Act and the 1933 Act Regulations; (C) no order preventing or suspending the use of any U.S. Preliminary Prospectus, any U.S. Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, (D) the Registration Statement, or any amendment or supplement thereto does not contain, and any amendment or supplement thereto will not contain, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (E) each of the U.S. Preliminary Prospectus and the Canadian Preliminary Prospectus constitutes, and each of the U.S. Prospectus, Canadian Prospectus, the Pricing Disclosure Package and any Supplementary Material or any amendment or supplement thereto will constitute, full, true and plain disclosure of all material facts relating to the Company and its subsidiaries, considered as one enterprise, and the Shares, and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties contained in clauses (D) and (E) above do not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by any Agent through the Lead Agent expressly for use in the Registration Statement, the U.S. Preliminary Prospectus, the U.S. Prospectus, the Canadian Prospectus, any Issuer Free Writing Prospectus and any Supplementary Material and the parties hereto agree that such information provided by or on behalf of any Agent through the Lead Agent consists solely of the material referred to in Section 14 hereof.

(b)                                 MRRS Decision Document. The Reviewing Authority has issued MRRS Decision Documents dated September 12, 2006 with respect to the Preliminary Base Shelf Prospectus and dated October 3, 2006 with respect to the Canadian Base Prospectus, and no order suspending the distribution of any of the securities of the Company has been issued by the Reviewing Authority and no proceeding for that purpose has been initiated or, to the best of the Company’s knowledge, threatened by the Reviewing Authority, and any request on the part of the Reviewing Authority for additional information has been complied with.

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(c)                                  Documents Incorporated by Reference. Each document filed or to be filed with the Qualifying Authorities and the Commission and incorporated by reference in the Canadian Preliminary Prospectus, the U.S. Preliminary Prospectus, the Canadian Prospectus,  the U.S. Prospectus or the Registration Statement complied, as at the applicable filing date, or will comply when so filed, in all material respects with the requirements of Canadian Securities Laws, U.S. securities laws, and the Shelf Procedures and, when read together with the Canadian Preliminary Prospectus, the U.S. Preliminary Prospectus, the Canadian Prospectus or the U.S. Prospectus, as the case may be, do not as of the date of the Canadian Preliminary Prospectus and the U.S. Preliminary Prospectus, and will not as of the date of the Canadian Prospectus or the U.S. Prospectus, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(d)                                 Documents Filed with Qualifying Authorities and Commission. Since the time that the Reviewing Authority issued an MRRS Decision Document on behalf of the Qualifying Authorities for the Canadian Base Prospectus, no document with respect to the Canadian Base Prospectus or the Registration Statement, any amendment thereto or any document incorporated by reference therein, has been filed or transmitted for filing with the Qualifying Authorities or the Commission by or on behalf of the Company, except (i) the Canadian Preliminary Prospectus Supplement and U.S. Preliminary Prospectus Supplement in the form previously delivered to the Agents, and (ii) any document incorporated (or deemed to be incorporated) by reference in the Canadian Base Prospectus or incorporated by reference in the Canadian Prospectus Supplement and publicly available on the System for Electronic Document Analysis and Retrieval of the Qualifying Authorities (“SEDAR”), (iii) any document filed on EDGAR and incorporated (or deemed to be incorporated) by reference into the Registration Statement, U.S. Preliminary Prospectus or the U.S. Prospectus, and (iv) any other document copies of which have been provided or made available to the Agents.

(e)                                  Pricing Disclosure Package. The Pricing Disclosure Package, as of the Applicable Time, did not, and as of the Closing Date, will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Each Issuer Free Writing Prospectus complies in all material respects with the applicable provisions of the 1933 Act and the rules and regulations thereunder, and does not include information that conflicts with the information contained in the Registration Statement, the U.S. Preliminary Prospectus, the Pricing Prospectus or the U.S. Prospectus, and each Issuer Limited Use Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. No representation and warranty is made in this paragraph 2(e) with respect to any information contained in or omitted from the Pricing Disclosure Package or any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Agent through the Lead Agent expressly for use therein. The parties hereto agree that such information provided by the Lead Agent consists solely of the materials referred to in Section 14 hereof.

(f)                                    Independent Accountants. The accountants who reported on and certified the financial statements included or incorporated by reference in the Registration Statement, the U.S. Preliminary Prospectus, the U.S. Prospectus, and the Canadian Prospectus, are independent public accountants as required by the 1933 Act, the 1933 Act Regulations and the rules of the Public Company

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