EXECUTION COPY
AGENCY AGREEMENT
February 17, 2005
FRONTEER DEVELOPMENT GROUP
INC.
1066 West Hastings Street, Suite
1640
Vancouver, British Columbia
V6E 3X1
Attention: Mark O'Dea, President and
Chief Executive Officer
Dear Sirs:
Re:
Private Placement of
Units
We, Pacific International Securities Inc.
and Toll Cross Securities Inc. (collectively, the "Agents"),
understand that Fronteer Development Group Inc. (the "Corporation")
proposes to undertake a private placement of up to 7,270,000 units
(the "Units") having the attributes specified in this agreement
(the "Agreement") at a price of $1.75 per Unit to raise gross
proceeds of up to $12,722,500. Subject to the terms and conditions
set forth in this Agreement, the Corporation hereby appoints the
Agents to act as the Corporation's exclusive agents and each of the
Agents accepts the appointment and agrees to act as an agent of the
Corporation and to use its commercial best efforts to find and
introduce to the Corporation potential Purchasers (as defined
herein) to purchase, by way of private placement, the Units. The
Agents are under no obligation to purchase any of the Units,
although each Agent may subscribe for Units if it so
desires.
The Corporation granted the Agents an
option (the "Over-Allotment Option") to increase, at their
sole discretion, the private placement by an additional 1,200,000
Units, which the Agents were required to exercise in whole or in
part before the Closing Date (defined below). The Agents exercised
the Over-Allotment Option to increase the private placement by an
additional 1,200,000 Units, which additional Units are included in
the number of Units described above.
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1.
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Definitions
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1.1
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(a)
(b)
(c)
(d)
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In this Agreement, including any Schedules forming a part of this
Agreement:
"$" means Canadian dollars;
"1933 Act" means the United States Securities Act of 1933,
as amended;
"1934 Act" means the United States Securities Exchange Act of
1934, as
amended;
"Accredited Investor" means:
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(i)
for Purchasers resident in British
Columbia or Alberta, a Purchaser who qualifies as an "accredited
investor" pursuant to Multilateral Instrument 45-103-Capital
Raising Exemptions; or
(ii)
for Purchasers resident in Ontario,
a Purchaser who qualifies as an "accredited investor" as defined in
section 1.1 of Rule 45-501-Exempt Distributions of the Ontario
Securities Commission;
(e)
"Agents" means Pacific and Toll
Cross;
(f)
"Agents' Expenses" has the meaning given
to that term in section 10.4;
(g)
"Agents' Fee" has the meaning given to
that term in section 10.1;
(h)
"Agreement" means this agreement and
includes all Schedules and exhibits attached hereto, in each case
as they may be amended or supplemented from time to
time;
(i)
"Applicable Securities Laws" means, in
respect of each and every offer or sale of Units, the applicable
securities legislation, rules, policies, instruments, notices and
orders of each of the Qualifying Jurisdictions;
(j)
"Broker Warrant" has the meaning given to
that term in section 10.2, and "Broker Warrants" means more than
one Broker Warrant;
(k)
"Broker Warrant Share" has a meaning
given to that term in section 10.2, and "Broker Warrant Shares"
means more than one Broker Warrant Share;
(1) "Canadian
Applicable Securities Laws" means the applicable securities
legislation, rules, policies, instruments, notices and orders of
each of the Provinces of British Columbia, Alberta, Ontario and
Quebec;
(m)
"Closing" has the meaning given to that
term in section 9.1;
(n)
"Closing Date" has the meaning given to
that term in section 9.1;
(o)
"Commission Share" has the meaning given
to that term in section 10.1, and "Commission Shares" means more
than one Commission Share;
(p)
"Commission Unit" has the meaning given
to that term in section 10.1, and "Commission Units" means more
than one Commission Unit;
(q)
"Commission Warrant" has the meaning
given to that term in section 10.1 and "Commission Warrants" means
more than one Commission Warrant;
(r)
"Commission Warrant Share" has the
meaning given to that term in section 10.1 and "Commission Warrant
Shares" means more than one Commission Warrant Share;
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(s)
"Corporate Finance Fee" has the meaning
given to that term in section 10.3;
(t)
"Corporate Finance Fee Share" has the
meaning given to that term in section 10.3, and "Corporate Finance
Fee Shares" means more than one Corporate Finance Fee
Share;
(u)
"Corporate Finance Fee Unit" has the
meaning given to that term in section 10,3, and "Corporate Finance
Fee Units" means more than one Corporate Finance Fee
Unit;
(v)
"Corporate Finance Fee Warrant" has the
meaning given to that term in section 10.3, and "Corporate Finance
Fee Warrants" means more than one Corporate Finance Fee
Warrant;
(w)
"Corporate Finance Fee Warrant Share" has
the meaning given to that term in section 103, and "Corporate
Finance Fee Warrant Shares" means more than one Corporate Finance
Fee Warrant Share;
(x)
"Directed Selling Efforts" means
"directed selling efforts" as defined in Regulation S;
(y)
"Distribution" has the meaning given to
that term under Canadian Applicable Securities Laws;
(z)
"Exchange" means the Toronto Stock
Exchange;
(aa)
"Exchange Conditions" has the meaning
given to that term in section 36;
(bb)
"Financial Statements" means the
financial statements of the Corporation described in paragraph
4,1(p);
(cc)
"Foreign Private Issuer" means a "foreign
private issuer" as such term is used in Regulation S;
(dd)
"Indemnified Persons" has the meaning
given to that term in section 11.1;
(ee)
"Material Change" has the meaning given
to that term under Canadian Applicable Securities Laws;
(ff)
"Material Fact" has the meaning given to
that term under Canadian Applicable Securities Laws;
(gg)
"Misrepresentation" has the meaning given
to that term under Canadian Applicable Securities Laws;
(hh)
"Net Proceeds" has the meaning given to
that term in section 9.3;
(ii)
"Pacific" means Pacific International
Securities Inc.;
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(jj)
"Private Placement" means the offering
and sale of the Units pursuant to the terms and conditions of this
Agreement and the Subscription Agreements;
(kk)
"Purchaser" means a person that
subscribes for and purchases Units under the Private Placement and
"Purchasers" means more than one Purchaser;
(ll)
"Qualifying Jurisdictions" means the
Provinces of British Columbia, Alberta, Ontario and Quebec, the
United States and such other jurisdictions in Canada and outside
Canada which are agreed to by the Corporation and the
Agents;
(mm)
"Regulation D" means Regulation D
promulgated under the 1933 Act;
(nn)
"Regulation S" means Regulation S
promulgated under the 1933 Act;
(oo)
"Regulatory Authorities" means the
securities regulatory authorities in each of the Qualifying
Jurisdictions;
(pp)
"Rule 904" means Rule 904 of Regulation
S;
(qq)
"Securities" means the Units, the Shares,
the Warrants and the Warrant Shares;
(rr)
"Share" means a common share of the
Corporation forming part of a Unit, and "Shares" means more than
one Share;
(ss)
"Subscription Agreement" means the
agreement between the Corporation and a
Purchaser pursuant to which the Purchaser
subscribes for and agrees to purchase
Units and includes all Schedules thereto,
in each case as they may be amended or
supplemented from time to
time;
(tt)
"Subscription Proceeds" means the
aggregate gross subscription proceeds paid by the Purchasers for
the Units;
(uu)
"Substantial US Market Interest" means
"substantial US market interest" as defined in Regulation
S;
(vv)
"Time of Closing" has the meaning given
to that term in section 9.1;
(ww)
"Toll Cross" means Toll Cross
Securities Inc.;
(xx)
"Unit" means an equity unit of the Corporation to be
offered for sale by the Agents, as agents on behalf of the
Corporation, under the terms and conditions of this Agreement, each
Unit consisting of one Share and one-half of one Warrant, and
"Units" means more than one Unit;
(yy)
"United States" has the meaning given to
that term in Regulation S;
(zz)
"US Affiliate" means a US registered
broker-dealer affiliate of one of the Agents;
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(aaa) "US Accredited Investor" means an
"accredited investor" as defined in Rule 501(a) of Regulation
D;
(bbb) "US Person" has the meaning given
to that term in Regulation S;
(ccc) "Warrant" means a transferable
common share purchase warrant, one-half of which forms part of a
Unit, having the attributes described in section 3.5, and
"Warrants" means more than one Warrant; and
(ddd) "Warrant Share" means a common
share of the Corporation to be issued upon the exercise of one or
more Warrants, and "Warrant Shares" means more than one Warrant
Share.
2.
Appointment of
Agents
2.1
The Corporation appoints the Agents as
its exclusive agents and each of the Agents accepts the appointment
and agrees to act as an agent of the Corporation to use its
commercial best efforts to find and introduce to the Corporation
potential Purchasers to purchase, by way of private placement, up
to 6,070,000 Units at a price of $1.75 per Unit.
3.
Offering Terms
3.1
The Units will be offered for sale by the
Agents, as agents on behalf of the Corporation, to Purchasers
resident in the Qualifying Jurisdictions.
3.2
The sale of the Units to Purchasers is to
be effected by the Agents in a manner exempt from any prospectus or
offering memorandum filing or delivery requirements of the
Applicable Securities Laws and without the necessity of obtaining
any order or ruling of the Regulatory Authorities and, for offers
and sales in the United States, in accordance with the requirements
of the exemption from registration from US federal and state
securities laws available under Rule 506 of Regulation D. The
Agents will notify the Corporation with respect to the identity and
jurisdiction of residence of each Purchaser as soon as practicable
and with a view to affording sufficient time to allow the
Corporation to confirm compliance with all Applicable Securities
Laws in connection with the sale of the Units to the
Purchasers.
3.3
The Agents will obtain from each
Purchaser a properly completed and duly executed Subscription
Agreement and a properly completed and duly executed form of
Accredited Investor or U.S. Accredited Investor questionnaire, as
applicable, each in the form attached as a Schedule to the
Subscription Agreement, together with any additional documentation
as may be requested by the Exchange.
3.4
If, in the opinion of the Agents, it is
necessary, the Agents will form, manage and participate in a group
of sub-agents to offer and sell the Units as provided for
hereunder. Each sub-agent shall be appropriately registered under
the Applicable
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Securities Laws so as to permit it to
lawfully offer and sell the Units in such jurisdictions in which it
offers and sells the Units. In the event that a selling group is
formed, the Agents will:
(a)
manage the selling group as and to the
extent customary in the securities industry in Canada;
and
(b)
require each member of the selling group
to offer and sell the Units on the terms set forth in this
Agreement.
3.5
Each Unit will consist of one Share and
one-half of one Warrant. Each whole Warrant will entitle the holder
to purchase one Warrant Share of the Corporation for a period of
two years from the Closing Date at a price of $2.75 per Warrant
Share, after which time the Warrants will expire.
3.6
The Corporation covenants to use its
commercial best efforts to satisfy as expeditiously as possible,
each of the conditions of the Exchange (the "Exchange Conditions")
required to be satisfied prior to the Exchange's acceptance of the
Corporation's notice of the Private Placement including, without
limitation, obtaining approval of the Private Placement from a
majority of the Corporation's shareholders.
3.7
The terms and conditions of the Warrants,
the Commission Warrants, the Corporate Finance Fee Warrants and the
Broker Warrants and the attributes and characteristics of the
Warrants, the Commission Warrants, the Corporate Finance Fee
Warrants and the Broker Warrants will be substantially as described
in this Agreement subject to the changes, if any, that the
Corporation and the Agents (each on its behalf and, with respect to
the Warrants, on behalf of the Purchasers) may agree to.
3.8
The Corporation and each of the Agents
confirms that the Private Placement has not been, and agrees that
it will not be, advertised in any way.
3.9
No selling or promotional expenses will
be paid or incurred in connection with the Private Placement,
except for professional services or for services performed by a
registered dealer.
3.10
The Agents acknowledge that the
Securities, the Commission Shares, the Commission Units, the
Commission Warrants, the Commission Warrant Shares, the Corporate
Finance Fee Shares, the Corporate Finance Fee Units, the Corporate
Finance Fee Warrants, the Corporate Finance Fee Warrant Shares, the
Broker Warrants and the Broker Warrant Shares have not been, and
will not be, registered under the 1933 Act or applicable state
securities laws and may not be offered or sold except outside the
United States in accordance with Regulation S or, for offers or
sales in the United States, offered by the Agents through the US
Affiliate, and sold by the Corporation, pursuant to Rule 506 of
Regulation D. Accordingly, each of the Agents represents, warrants
and covenants to and with the Corporation, without limiting the
generality of section 3.1 of this Agreement,
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as follows, which representations an
warranties shall be true as of the date of this Agreement and as of
the Time of Closing and the Closing Date, and which
representations, warranties and covenants shall survive the
completion of the transactions contemplated under this
Agreement;
(a)
it has offered and sold, and will offer
and sell, the Securities outside the United States only in
accordance with Rule 903 of Regulation S and accordingly, neither
the Agent, its affiliates nor any persons acting on its or their
behalf, has made or will make:
(i)
except as permitted under (b), any offer
to sell, or any solicitation of an offer to buy, any Securities to
any person in the United States;
(ii)
any sale of Securities to any Purchaser
unless, at the time the buy order was or will have been originated,
the Purchaser was outside the United States, or the Agent, or such
affiliate or person acting on behalf of the Agent, reasonably
believed that such Purchaser was outside the United States;
or
(iii)
any Directed Selling Efforts in the
United States with respect to the Securities;
(b)
it has offered and sold, and will offer
and sell, Securities to Purchasers in the
United States only in the following manner:
(i)
the Agent has offered and sold and will
offer and sell the Securities in the United States only through a
US Affiliate, which was and is on the dates of such offers and
sales a duly registered broker or dealer pursuant to Section 15(b)
of the 1934 Act and under the securities laws of each state in
which such offers and sales were or are made (unless exempted from
the respective state's broker-dealer registration requirements) and
was and is a member in good standing with the National Association
of Securities Dealers, Inc.;
(ii)
immediately prior to soliciting offerees,
the Agent has or will have reasonable grounds to believe and did or
will believe that each offeree was and is an US Accredited
Investor;
(iii)
no form of general solicitation or
general advertising (as those terms are used in Regulation D) or
any manner involving a public offering within the meaning of
Section 4(2) of the 1933 Act has been or will be used by it or its
affiliates, including but not limited to advertisements, articles,
notices or other communications published in any newspaper,
magazine, or similar media or broadcast over radio or television,
or any seminar or meeting whose attendees had been invited by
general solicitation or general advertising, in connection with the
offer or sale of the Securities;
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(iv)
any offer, sale or solicitation of an
offer to buy Securities that has been made or will be made in the
United States was or will be made only to US Accredited Investors
by the Agent through a US Affiliate, and in transactions that are
exempt from registration under the 1933 Act and any applicable
state securities laws and in accordance with applicable US federal
or state laws or regulations governing the registration and conduct
of securities brokers and dealers;
(v)
neither the Agent, its affiliates or any
person acting on its behalf (other than the Corporation, its
affiliates and any person acting on their behalf, as to which no
representation is made) has taken or will take, directly or
indirectly, any action in violation of Regulation M under the 1934
Act in connection with the offer and sale of the Securities;
and
(c)
unless, on the Closing Date and prior to
the Time of Closing, it and each US Affiliate through which it has
offered and sold Securities in the United States has executed and
delivered to the Corporation an Agents' Certificate in
substantially the form set out in Exhibit "1" - Agents'
Certificate, it will be deemed to represent and warrant to the
Corporation, as of the Closing Date, that neither it nor any of its
affiliates has made any offers or sales of the Securities in the
United States.
4.
Representations and Warranties of
the Corporation
4.1
The Corporation represents and warrants
to the Agents (each on its own behalf and on behalf of the
Purchasers), and acknowledges that the Agents are relying upon such
representations and warranties in entering into this Agreement,
that:
(a)
the Corporation has no material
subsidiaries other than Fronteer de Mexico S.A. de C.V.;
(b)
the Corporation is a valid and subsisting
corporation duly incorporated and in good standing under the
Business Corporations Act (Ontario) with respect to the
filing of annual reports with the Registrar of Companies
(Ontario);
(c)
the Corporation is a reporting issuer
only in the Provinces of British Columbia, Alberta and Ontario and
the Corporation, to the best of its knowledge, is not in default of
any of the requirements of the Canadian Applicable Securities
Laws;
(d)
the authorized capital of the Corporation
consists of an unlimited number of common shares without par value
of which 34,589,311 common shares are issued and outstanding as of
the date hereof before the issuance of the Units and the Commission
Units as fully paid and non-assessable (the "Issued
Shares");
(e)
the common shares of the
Corporation are listed and posted for trading on the Exchange and,
to the best of its knowledge, the Corporation is not in default of
any of the listing requirements of the Exchange, and the
Corporation has obtained
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the approval of the Private Placement
from a majority of the Corporation's shareholders, as required by
the Exchange;
(f)
except for the Subscription Agreements,
Issued Shares, any Units issued in a Closing and any options,
warrants, agreements and convertible notes disclosed in Schedule
"A" to this Agreement, there are no, nor will there be immediately
prior to the Time of Closing, documents, instruments or other
writings of any kind whatsoever which constitute a "security" (as
that term is defined under Canadian Applicable Securities Laws) of
the Corporation;
(g)
subject to due exercise (including
payment in full of the applicable subscription price, if any) of
the instruments pursuant to which they are issued, if any, upon
their issuance, the Shares, the Warrant Shares, the Commission
Shares, the Commission Warrant Shares, the Corporate Finance Fee
Shares, the Corporate Finance Fee Warrant Shares and the Broker
Warrant Shares will be validly issued and outstanding as fully paid
and non-assessable common shares of the Corporation;
(h)
upon their issuance, the Warrants, the
Commission Warrants, the Corporate Finance Fee Warrants and the
Broker Warrants will have been validly created and issued and will
be outstanding, registered in the names of the holders
thereof;
(i)
all of the material transactions of the
Corporation have been promptly and properly recorded or filed in or
with the books or records of the Corporation and the minute books
of the Corporation contain all records of the meetings and
proceedings of the Corporation's directors, shareholders and other
committees, if any;
(j)
with respect to the two years preceding
the date hereof, all prospectuses, annual information forms,
material change reports, shareholder communications, press
releases, publicly filed financial statements, and other disclosure
documents of the Corporation (collectively the "Disclosure
Documents") contain no untrue statement of a Material Fact relating
to the Corporation as at the date on which such documents were
filed on SEDAR nor do they omit to state a Material Fact relating
to the Corporation which, at the date on which such documents were
filed on SEDAR, was required to have been stated or was necessary
to prevent a statement that was made from being false or misleading
in the circumstances in which it was made and were prepared in
accordance with and complied with Applicable Securities
Laws;
(k)
the Corporation holds all material
licences and permits that are required for carrying on its business
in the manner in which such business has been carried on and each
of the foregoing is in full force and effect;
(l)
the Corporation has the corporate power
and capacity to own the assets owned by it and to carry on the
business carried on by it and the Corporation is duly qualified to
carry on business in all jurisdictions in which it carries on
business;
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(m)
the Corporation has good and marketable
title to its assets free and clear of all liens, charges and
encumbrances of any kind whatsoever except as detailed in the
agreements with respect to the acquisition of such assets as set
forth in Schedule "B" or in any relevant title opinions previously
obtained by it with respect to any such assets (copies of which
have been provided to the Agents) or set out in the Corporation's
Disclosure Documents;
(n)
the Corporation holds either exploration
or exploitation concessions or claims or other conventional
property, proprietary or contractual interests or rights,
recognized in the jurisdiction in which a particular mineral
property is located, in respect of the minerals located in
properties in which it has, or has a right to acquire, an interest
under valid, subsisting and enforceable title documents or other
recognized and enforceable agreements or instruments, sufficient to
permit it to explore the minerals relating thereto, all such
property, leases or claims and all property, leases or claims in
which it has any interest or right have been validly located and
recorded in accordance with all applicable laws and are valid and
subsisting, it has all necessary surface rights, access rights and
other necessary rights and interests relating to the mineral
properties in which it has an interest granting it the right and
ability to explore for minerals for development purposes as are
appropriate in view of the rights and interest therein of it, with
only such exceptions as do not materially interfere with the use
made by it of the rights or interests so held, and each of the
proprietary interests or rights and each of the documents,
agreements and instruments and obligations relating thereto
referred to above is currently in good standing in its
name;
(o)
the Corporation is current with all
material filings required to be made in all jurisdictions in which
it exists or carries on any material business and the Corporation
is not in default of any filings required to be made under
Applicable Securities Laws;
(p)
the audited consolidated financial
statements of the Corporation for its fiscal year ended December
31, 2003 and the unaudited consolidated financial statements of the
Corporation for the interim nine-month period ended September 30,
2004 of the Corporation's most recent fiscal year (collectively,
the "Financial Statements") are true and correct in every material
respect and present fairly and accurately the financial position
and results of the operations of the Corporation for the periods
then ended and the Financial Statements have been prepared in
accordance with Canadian generally accepted accounting principles
applied on a consistent basis;
(q)
there are no material liabilities of the
Corporation, whether direct, indirect, absolute or, to the best of
the Corporation's knowledge, contingent or otherwise which are not
disclosed or reflected in the Corporation's Financial Statements
except those incurred in the ordinary course of business of the
Corporation since September 30, 2004 and which are recorded in the
books and records of the Corporation;
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(r)
since September 30, 2004 there has not
been any adverse Material Change of any kind whatsoever in the
financial position or condition of the Corporation, or any damage,
loss or other change of any kind whatsoever in circumstances
materially affecting the business or assets of the Corporation, or
the right or capacity of the Corporation to carry on its
business;
(s)
the contracts and agreements set out in
Schedule "B" hereto constitute all of the material contracts and
agreements of the Corporation under which the Corporation is
obligated to pay or expend more than $50,000 per year presently in
force, and all such contracts and agreements are in good standing
in all material respects and not in default in any
respect;
(t)
all tax returns and reports of the
Corporation required by law to have been filed have been filed and
are substantially true, complete and correct and all taxes and
other government charges of any kind whatsoever of it have been
paid or accrued in the Financial Statements;
(u)
except as disclosed in Schedule "C"
hereto and pursuant to an e-mail from the Toronto Stock Exchange
dated November 30, 2004 requesting further information from the
Corporation, the details of which have been disclosed to the
Agents, to its knowledge, there are no actions, suits, judgments,
investigations or proceedings of any kind whatsoever outstanding,
pending or threatened against or affecting the Corporation or its
directors (in their capacity as directors of the Corporation),
officers (in their capacity as officers of the Corporation) or
promoters (in their capacity as promoters of the Corporation) at
law or in equity or before or by any federal, provincial, state,
municipal or other governmental department, commission, board,
bureau or agency of any kind whatsoever which would result in an
adverse change in the financial position, business or prospects of
the Corporation;
(v)
neither the Corporation nor, to the best
of the Corporation's knowledge, any of its directors, officers and
promoters are in breach of any law, ordinance, statute, regulation,
by-law, order or decree of any kind whatsoever which breach would
have a material adverse effect on the financial position, business
or prospects of the Corporation;
(w)
the Corporation has all requisite power
and capacity and good and sufficient right and authority to enter
into, deliver and carry out its obligations under this Agreement
and the Subscription Agreements and to complete the transactions
contemplated under this Agreement on the terms and conditions set
forth herein;
(x)
this Agreement has been authorized,
executed and delivered by the Corporation and constitutes a valid
and legally binding obligation of the Corporation enforceable
against the Corporation in accordance with the terms thereof and,
upon being executed and delivered, each of the Subscription
Agreements and the certificates representing the Warrants, the
Commission Warrants, the Corporate Finance Fee Warrants and the
Broker Warrants will constitute a valid and legally
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binding obligation of the Corporation
enforceable against the Corporation in accordance with the terms
thereof, subject to laws of general application with respect to
bankruptcy and creditors' rights and the principles of
equity;
(y)
the execution and delivery of this
Agreement and the Subscription Agreements, the performance of its
obligations under this Agreement and the completion of the
transactions contemplated under this Agreement will not conflict
with, or result in the breach of or the acceleration of any
indebtedness under, or constitute default under, the Articles or
By-Laws of the Corporation or any indenture, mortgage, agreement,
lease, licence or other instrument of any kind whatsoever to which
the Corporation is a party or by which it or any of its properties
or assets is hound, or, to the best of its knowledge, any statute
or any judgment, decree, order, rule, policy or regulation of any
court, governmental authority or administrative body of any kind
whatsoever applicable to the Corporation or any of its properties
or assets, which could have a material adverse effect on the
condition, business, properties or results of operations of the
Corporation; and
(z)
except as disclosed herein and in the
Disclosure Documents, to the best of its knowledge, no action has
been taken by any persons which would in any way limit, restrict or
cause interference with any mineral exploration and development
work which either the Corporation or the Subsidiary currently
proposes to carry out on its mineral properties.
4.2
The Corporation further represents,
warrants, covenants and agrees that:
(a)
the Corporation is a Foreign Private
Issuer and reasonably believes that there is no Substantial US
Market Interest in the Securities;
(b)
it is not, and agrees to use its best
efforts not to become, at any time prior to the expiration of two
years after the applicable Closing Date, an "investment company" as
defined in the United States Investment Company Act of
1940;
(c)
except with respect to the offer and sale
of the Securities offered hereby, the Corporation has not, for a
period of six months prior to the commencement of the offering of
the Securities, sold, offered for sale or solicited any offer to
buy any of its securities in the United States in a manner that
would be integrated with the offer and sale of the Securities and
would cause the exemption from registration set forth in Rule 506
of Regulation D to become unavailable with respect to the offer and
sale of the Securities;
(d)
neither the Corporation nor
