Pre-Effective Amendment to Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2/A Amendment No. Four to SB-2 HTML 968K
2: EX-1.1 Form of Underwriting Agreement 64 277K
3: EX-1.2 Form of U.S. Selling Agent Agreement 6 18K
4: EX-4.1 Specimen Common Stock Certificate HTML 10K
5: EX-4.3 Form of Underwriters' Compensation Options 21 80K
6: EX-5.1 Opinion of United States Counsel 3 18K
7: EX-10.17 Form of Escrow Agreement 25 87K
8: EX-23.1 Consent of Ernst & Young LLP 1 6K
Exhibit 1.2
November o, 2005
MANAGER
Desjardins Securities Inc.
#2750 - 145 King Street West
Toronto, Ontario
M5H 1J8
and
THE DEALERS SET FORTH IN SCHEDULE "A"
Dear Sirs:
RE: SELLING AGREEMENT
This Selling Group Agreement (the "Selling Agreement") is between the Manager
identified above (the "Manager" or "we") and the Dealers set forth in Schedule
"A" (the "Dealers") and is entered into for the purpose of forming a selling
group ("Selling Group") in connection with the negotiated purchase and public
offering of securities ("Securities") of Gryphon Gold Corporation (the
"Company") securities ("Securities").
Desjardins Securities Inc. ("Desjardins") will enter into an underwriting
agreement ("Underwriting Agreement") with the Company whereby Desjardins will
agree to purchase as principal, with other underwriters (collectively the
"Underwriters"), the Securities with a view to distributing such Securities (a
"Distribution"). In connection with such Distribution, Desjardins, only on its
own behalf and on behalf of the other Underwriters, may form a Selling Group
managed by Desjardins with respect to those Securities.
INVITATION
As a member of a Selling Group, we will offer to you and to the other Dealers
who are members of the Selling Group an allocation of the Securities at the
public offering prices less any concession, subject to prior sales, when, as and
if delivered to and accepted by us and subject to the approval of the Securities
by counsel and of certain legal matters by counsel to the Underwriters and
subject to the terms and conditions of this Selling Agreement.
For each Selling Group in which you will be invited to participate as a Dealer,
we will send to you an initial wire by e-mail, electronic communication service
or by an alternative means of
communication (the "Communication"). If we use an electronic communication
service, we will advise you of the name of the service provider.
The Communication will have a term sheet attached specifying the initial terms
of the transaction and is expected to identify, among other information (if
known at the time of the initial terms Communication):
1. The Company, title and estimated principal amount of the Securities,
2. The expected offering date, Underwriting Agreement execution date and
closing date ("Closing") for the Securities,
3. The selling concession,
4. The names of all Underwriters participating in the Underwriting group,
5. The names of all Dealers invited to join the Selling Group,
6. Our contact information as Manager,
7. Any matters reflecting our customary business practices applicable to
the Selling Group, together with any changes from those customary
practices.
The initial wire also may include other information that we feel will be useful
to the Dealers in connection with their participation as members of the Selling
Group. You separately will receive the Preliminary Prospectus for the
Securities, and any blue sky and legal investment memoranda prepared for the
Securities. You may receive one or more of those items in electronic form. If
you have not received those items within a reasonable period after you receive
the initial wire, you should contact us.
CONFIRMATION
Your indicated interest of the Securities offered to you will be accepted
immediately thereafter subject to confirmation and allotment in whole or in
part. Confirmation of Securities to you by Desjardins Securities will constitute
a definite and binding purchase by you. Desjardins Securities reserves the right
to close the offering books relating to a Distribution at any time without
notice. All sales undertaken by the Selling Group pursuant to this Selling
Agreement will be strictly on a best efforts basis.
TERMINATION OF SELLING GROUP
The Selling Group for a Distribution will be deemed to have terminated upon the
Closing of the Distribution or at such other date as advised by Desjardins via
the Communication.
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DISTRIBUTION STATEMENT
You undertake to complete distribution of the Securities as promptly as possible
and to deliver to us not later than 15 calendar days after the closing date, or
such later date as we may agree upon, a Distribution Statement, duly completed
and signed by you.
FEES
With respect to the Distribution you will be entitled to a fee equal to 100% of
the selling concession on the shares that are allotted to you. The selling
concession will be 4% of the value of the securities sold pursuant to this
offering.
EXPENSES
Both Desjardins and the Selling Group are responsible for their own expenses
unless it is mutually agreed that an extraordinary expense is covered or shared
by one or both of the parties.
MARKETING
Desjardins Securities reserves the right, during the period of a Distribution
and prior to the termination of the Selling Group, to request from you from time
to time, and you hereby agree to furnish us with, information as to the amount
of Securities of your firm participation remaining unsold. If during such period
you have on hand any unsold Securities and if, in our opinion, such Securities
are needed to complete sales made by or for the account of Desjardins Securities
or the other Underwriters or the Selling Group, prior to closing, we may reduce
your allocation. Furthermore, Desjardins may at any time prior to the
termination of the Selling Group reduce your allocation by an amount which, in
our opinion, has not been effectively placed for investment by you.
ADVERTISING
A Selling Group member involved in a Distribution may not advertise its
participation in the Distribution without our prior written consent.
PROSPECTUSES
With respect to each Distribution of Securities, we shall send to you as soon as
practicable as many copies, in English and French (where applicable), of the
prospectus filed with the securities regulatory authorities (other than any
documents incorporated therein by reference). It is your responsibility to
deliver prospectuses to your clients in accordance with the requirements of
Federal and State securities legislation.
GENERAL TERMS AND CONDITIONS APPLICABLE TO ALL DEALERS
By executing this Selling Agreement, and for so long as you are a Dealer
participating in the Selling Group, you agree to be bound by the following terms
and provisions:
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MANAGER AS AGENT ON BEHALF OF THE SELLING GROUP. You authorize us, as Manager,
together with any co-Managers, to act as agent on your behalf as a Dealer
participating in the Selling Group. As Manager, we may do the following on
behalf of the Selling Group:
1. AUTHORITY OF MANAGER. We may take such action as we determine in our
discretion to be advisable in connection with the offering of the
Securities on behalf of the Underwriters and the members of the Selling
Group. We will (i) determine the final form of the Underwriting
Agreement, (ii) execute and deliver the Underwriting Agreement on
behalf of the Underwriters, (iii) act under the Underwriting Agreement
on behalf of the Underwriters, and (iv) waive performance or
satisfaction by the Company of its obligations under the Underwriting
Agreement or of any other conditions to the delivery and purchase of
the Securities as may be specified in the Underwriting Agreement. We
will have full authority to take such action as we may deem to be
advisable in respect of all matters pertaining to this Selling
Agreement, the Underwriters, the Selling Group, the Underwriting
Agreement and the purchase and distribution of the Securities. Any such
actions that we perform will be only in the capacity as agent for the
Underwriters and the Selling Group.
2. SUBJECT TO PROVISIONS OF AGREEMENT WITH THE COMPANY. The offer
contained in any selling group invitation is made on the express
understanding that it is subject to the provisions of the Underwriting
Agreement with the Company to purchase the Securities being offered,
particularly with regard to the right to withdraw there from. Upon the
exercise of such right, the agreement resulting from your acceptance to
participate as a selling group member may be terminated by Desjardins
without prior notice and without obligation or liability to you.
Please confirm by signing and returning to Desjardins Securities Inc.,
Attention: Equity Capital Markets, that your Acceptance with respect to a
Distribution shall constitute your acceptance of and agreement to the terms and
conditions of this Selling Agreement.
Confirmed as the date first above written.
Yours truly,
DESJARDINS SECURITIES INC.
Beth Shaw
Vice President -- Equity Capital Markets & Syndication
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The foregoing is in accordance with our understanding and is accepted and agreed
to by us this ____ day of November, 2005.
DESJARDINS SECURITIES INTERNATIONAL INC.
_____________________________________________________________)
Title:
(signed by __________________________________________________)
Title:
(signed by __________________________________________________)
Title:
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SCHEDULE "A"
Desjardins Securities International Inc.
o
o
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