New Gold : UNDERWRITING AGREEMENT - Form 6-K

UNDERWRITING AGREEMENT

May 14, 2024

New Gold Inc.

Suite 3320, 181 Bay Street

Toronto, Ontario M5J 2T3

Attention:      Patrick Godin, President and Chief Executive Officer

Dear Sir:

CIBC World Markets Inc. (the "Lead Underwriter"), BMO Nesbitt Burns Inc., RBC Dominion Securities Inc., Scotia Capital Inc., National Bank Financial Inc., TD Securities Inc., Merrill Lynch Canada Inc., Canaccord Genuity Corp., Laurentian Bank Securities Inc. and Raymond James Ltd. (together with the Lead Underwriter, the "Underwriters" and each individually an "Underwriter") hereby severally, and not jointly nor jointly and severally, agree to purchase from New Gold Inc. (the "Company") in the respective percentages set forth in Section 21, and the Company hereby agrees to issue and sell to the Underwriters, upon and subject to the terms hereof, an aggregate of 87,300,000 common shares of the Company (the "Firm Shares") on an underwritten "bought deal" basis at a price of US$1.72 per Firm Share (the "Offering Price") for aggregate gross proceeds of US$150,156,000.

Upon and subject to the terms and conditions contained herein, the Company hereby grants to the Underwriters an option (the "Over-Allotment Option") to purchase severally, and not jointly nor jointly and severally, in the respective percentages set forth in Section 21 hereof, up to an additional 13,095,000 common shares of the Company (the "Additional Shares") at a price of US$1.72 per Additional Share for the purpose of covering over-allotments, if any. The Over-Allotment Option may be exercised in accordance with Section 15 hereof. The Firm Shares and the Additional Shares are collectively referred to herein as the "Offered Shares".

The Underwriters understand that the Company has prepared and filed with each of the Canadian Securities Commissions (as hereinafter defined) the Canadian Base Shelf Prospectus (as hereinafter defined) in respect of common shares, debt securities, subscription receipts, warrants and units of the Company, omitting the Shelf Information (as hereinafter defined) in accordance with the Shelf Procedures (as hereinafter defined) and that the Company has received a Receipt (as hereinafter defined) for the Canadian Base Shelf Prospectus on May 13, 2024. The term "Canadian Base Shelf Prospectus" means the (final) short form base shelf prospectus dated May 13, 2024 at the time the Receipt was issued with respect thereto in accordance with Canadian Securities Laws (as hereinafter defined), including the Shelf Procedures (as hereinafter defined), CSA Staff Notice 44-306 - Blanket Orders Exempting Well-known Seasoned Issuers from Certain Prospectus Requirements ("CSA Staff Notice 44-306"), the Ontario WKSI Blanket Order and the equivalent blanket orders adopted by the other Canadian Securities Commissions (together with CSA Staff Notice 44-306 and the Ontario WKSI Blanket Order, the "WKSI Blanket Orders") and includes all Documents Incorporated by Reference therein and the documents otherwise deemed to be a part thereof or included therein pursuant to Canadian Securities Laws. The Company has also prepared and filed a preliminary prospectus supplement relating to the Offering (as hereinafter defined), which excluded certain Shelf Information, with the Canadian Securities Commissions (including the Documents Incorporated by Reference therein, the "Canadian Preliminary Prospectus Supplement"). The Canadian Preliminary Prospectus Supplement, together with the Canadian Base Shelf Prospectus, is hereinafter called the "Canadian Preliminary Prospectus".

The Underwriters also understand that the Company has prepared and filed with the United States Securities and Exchange Commission (the "SEC") pursuant to the Canada/U.S. Multijurisdictional Disclosure System adopted by the SEC, a registration statement on Form F-10 (File No. 333-279369) covering the public offering and sale of the securities qualified under Applicable Securities Laws (as hereinafter defined) by the Canadian Base Shelf Prospectus, including the Offered Shares, under the United States Securities Act of 1933, as amended (the "U.S. Securities Act"), and the rules and regulations of the SEC thereunder (the Canadian Base Shelf Prospectus, together with any Documents Incorporated by Reference therein, any supplements or amendments thereto and with such deletions therefrom and additions or changes thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC, in the form included in such Form F-10, the "U.S. Base Prospectus" and such registration statement, including the prospectus contained therein at the time it become effective, as amended or supplemented, and the exhibits thereto and the Documents Incorporated by Reference therein, in the form in which it became effective, is herein called the "Registration Statement"). The Company has also prepared and filed with the SEC an appointment of agent for service of process upon the Company on Form F-X (the "Form F-X") in conjunction with the filing of the Registration Statement. The Company has also prepared and filed with the SEC, in accordance with General Instruction II.L of Form F-10, the Canadian Preliminary Prospectus Supplement, with such deletions therefrom and additions or changes thereto, as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC (the "U.S. Preliminary Prospectus Supplement"). The U.S. Preliminary Prospectus Supplement, together with the U.S. Base Shelf Prospectus, is hereinafter called the "U.S. Preliminary Prospectus". The U.S. Preliminary Prospectus and the Canadian Preliminary Prospectus are hereinafter collectively referred to as the "Preliminary Prospectuses".

In addition, the Underwriters also understand that the Company will (i) prepare and file, as promptly as practicable and in any event by 5:00 p.m. (Eastern time) on May 14, 2024, with the Canadian Securities Commissions, in accordance with the Shelf Procedures, a (final) prospectus supplement setting forth the Shelf Information (including any Documents Incorporated by Reference therein and any supplements or amendments thereto, the "Canadian Prospectus Supplement", and, together with the Canadian Base Shelf Prospectus, the "Canadian Prospectus"), and (ii) prepare and file with the SEC, within one Business Day following the filing of the Canadian Prospectus Supplement with the Canadian Securities Commissions, in accordance with General Instruction II.L of Form F-10, the Canadian Prospectus Supplement, with such deletions therefrom and additions or changes thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC (the "U.S. Prospectus Supplement", and together with the U.S. Base Prospectus, the "U.S. Prospectus"). The information, if any, included in the Canadian Prospectus Supplement that is omitted from the Canadian Base Shelf Prospectus for which a Receipt has been obtained, but that is deemed under the Shelf Procedures to be incorporated by reference into the Canadian Base Shelf Prospectus as of the date of the Canadian Prospectus Supplement, is referred to herein as the "Shelf Information". The U.S. Prospectus Supplement and the Canadian Prospectus Supplement are hereinafter collectively referred to as the "Prospectus Supplements" and the U.S. Prospectus and the Canadian Prospectus are hereinafter collectively sometimes referred to as the "Prospectuses".

Any reference herein to any "amendment" or "supplement" to the U.S. Base Prospectus, the U.S. Prospectus, the Canadian Base Shelf Prospectus or the Canadian Prospectus shall be deemed to refer to and include (i) the filing of any document with the Canadian Securities Commissions or the SEC after the date of such U.S. Base Prospectus, U.S. Prospectus, Canadian Base Shelf Prospectus or Canadian 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 the U.S. Securities Act or Canadian Securities Laws, as applicable, and (ii) any such document so filed.

The U.S. Preliminary Prospectus, as supplemented by the Issuer Free Writing Prospectuses (as hereinafter defined), if any, and the information listed in Schedule "B" hereto, taken together, are hereinafter referred to as the "Pricing Disclosure Package". For purposes of this Agreement, the "Applicable Time" is 4:30 p.m. (Eastern time) on May 13, 2024.

The Company understands that: (i) any offers or sales of the Offered Shares in Canada (other than other than Québec) will be conducted through the Underwriters, or one or more affiliates of the Underwriters, duly registered in compliance with applicable Canadian Securities Laws; and (ii) any offers or sales of the Offered Shares in the United States will be conducted through the Underwriters, or one or more affiliates of the Underwriters, duly registered as a broker-dealer in compliance with applicable U.S. Securities Laws (as hereinafter defined) and the requirements of the Financial Industry Regulatory Authority, Inc.

In consideration of the services rendered and to be rendered by the Underwriters hereunder, the Company hereby agrees to pay to the Lead Underwriter, on behalf of the Underwriters, at the Closing Time (as hereinafter defined), and at the Option Closing Time (as hereinafter defined), if any, a cash fee equal to 4.0% of the aggregate gross proceeds of the Offering (the "Underwriting Commission"), the payment of such fee by the Company to be reflected by the Underwriters making payment of the gross proceeds of the sale of the Firm Shares or the Additional Shares, as the case may be, to the Company, less the amount of the Underwriting Commission paid by the Company.

This Agreement shall be subject to the following terms and conditions.

Where used in this Agreement or in any amendment hereto, the following terms shall have the following meanings, respectively:

"Additional Shares" has the meaning given to it in the second paragraph of this Agreement;

"affiliate" has the meaning given to it in the BCBCA;

"Agreement" means the agreement resulting from the acceptance by the Company of the offer made by the Underwriters by this underwriting agreement;

"Applicable Securities Laws" means the Canadian Securities Laws and the U.S. Securities Laws;

"Applicable Time" has the meaning given to it in the seventh paragraph of this Agreement;

"Authorization" means any certificate, consent, order, permit, approval, waiver, licence, qualification, registration or similar authorization of any Governmental Authority having jurisdiction over a Person;

"BCBCA" means the Business Corporations Act (British Columbia);

"Business Day" means any day, other than a Saturday or Sunday, on which banks are open for business in Toronto, Ontario, and New York, New York;

"Canadian Base Shelf Prospectus" has the meaning given to it in the third paragraph of this Agreement;

"Canadian Offering Documents" means each of the Canadian Prospectus and any Canadian Prospectus Amendment, including the Documents Incorporated by Reference and any Marketing Documents;

"Canadian Preliminary Prospectus" has the meaning given to it in the third paragraph of this Agreement;

"Canadian Preliminary Prospectus Supplement" has the meaning given to it in the third paragraph of this Agreement;

"Canadian Prospectus" has the meaning given to it in the fifth paragraph of this Agreement;

"Canadian Prospectus Amendment" means any amendment to the Canadian Prospectus, including the Documents Incorporated by Reference;

"Canadian Prospectus Supplement" has the meaning given to it in the fifth paragraph of this Agreement;

"Canadian Securities Commissions" means the securities regulatory authorities in each of the Qualifying Jurisdictions;

"Canadian Securities Laws" means all applicable securities laws of each of the Qualifying Jurisdictions and the respective rules and regulations under such laws together with applicable published national, multilateral and local instruments, blanket orders and rulings of the securities regulatory authorities in the Qualifying Jurisdictions including, but not limited to, the WKSI Blanket Orders;

"CDS" means CDS Clearing and Depository Services Inc.;

"Claims" has the meaning given to it in Section 9;

"Closing Date" has the meaning given to it in Section 13;

"Closing Time" has the meaning given to it in Section 13;

"Commission" means the Ontario Securities Commission;

"Common Shares" means the common shares in the capital of the Company;

"Company" means New Gold Inc.;

"Company Contract" has the meaning given to it in Section 7(16);

"Credit Facility" means the credit facility established pursuant to the Fourth Amended and Restated Credit Agreement (as may be amended, modified, amended and restated, revised or supplemented from time to time);

"CSA Staff Notice 44-306" has the meaning given to it in the third paragraph of this Agreement;

"CSP Mine" means the Cerro San Pedro gold-silver mine in San Luis Potosi, Mexico;

"Debt Instrument" means any material loan, bond, debenture, promissory note or other instrument evidencing indebtedness (demand or otherwise) for borrowed money, to which the Company or any of its subsidiaries is a party or by which any of their property or assets are bound;

"Distribution" means "distribution" or "distribution to the public" as those terms are defined in the Canadian Securities Laws, except for where otherwise specified in this Agreement;

"Documents Incorporated by Reference" means all interim and annual financial statements, management's discussion and analysis, business acquisition reports, management information circulars, annual information forms, material change reports, Marketing Documents and other documents that are or are required by Applicable Securities Laws to be incorporated by reference into the Offering Documents, as applicable, except to the extent that such documents, or certain parts thereof, are modified or superseded by a statement contained in the Prospectuses or Prospectus Supplements or any other document subsequently filed that is also incorporated by reference with the Prospectuses;

"EDGAR" means the SEC's Electronic Document Gathering and Retrieval System;

"Employee Plans" has the meaning given to it in Section 7(46);

"Encumbrance" means any encumbrance of whatever kind or nature, regardless of form, whether or not registered or registrable and whether or not consensual or arising by law (statutory or otherwise), including any mortgage, lien, charge, pledge or security interest, whether fixed or floating, or any assignment, lease, option, right of pre-emption, right of first refusal, acquisition right, privilege, easement, right of way, servitude, restrictive covenant, right of use or any other right or claim of any kind or nature whatsoever which affects ownership or possession of, or title to, any interest in, or right to use or occupy property or assets;

"Environmental Laws" has the meaning given to it in Section 7(29)(a);

"Financial Statements" means, collectively (i) the audited consolidated financial statements of the Company as of and for the year ended December 31, 2023, the related notes thereto and the independent auditors' report thereon; and (ii) the unaudited condensed interim consolidated financial statements of the Company as of and for the three months ended March 31, 2024 and the related notes thereto;

"Firm Shares" has the meaning given to it in the first paragraph of this Agreement;

"Foreign Corruption Laws" has the meaning given to it in Section 7(52);

"Form F-X" has the meaning given to it in the fourth paragraph of this Agreement;

"Fourth Amended and Restated Credit Agreement" means the fourth amended and restated credit agreement dated as of April 26, 2023 among the Company (as borrower), The Bank of Nova Scotia and RBC Capital Markets (as co-lead arrangers and joint bookrunners), The Bank of Nova Scotia (as administrative agent), Royal Bank of Canada (as syndication agent), The Toronto-Dominion Bank and Canadian Imperial Bank of Commerce (as co-documentation agents), and The Bank of Nova Scotia, Royal Bank of Canada, The Toronto-Dominion Bank, Canadian Imperial Bank of Commerce, Bank of Montreal, Bank of America, N.A., Canada Branch, and National Bank of Canada (as lenders);

"Governmental Authority" means federal, provincial, state or local, domestic or foreign, governments, regulatory authorities, governmental departments, agencies, stock exchanges, commissions, bureaus, officials, ministers, crown corporations, courts, bodies, boards, tribunals or dispute settlement panels or other law, rule or regulation-making organizations or entities (a) having or purporting to have jurisdiction on behalf of any nation, province, territory or state or any other geographic or political subdivision of any of them, or (b) exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power;

"Hazardous Materials" has the meaning given to it in Section 7(29)(a);

"IFRS" means International Financial Reporting Standards as issued by the International Accounting Standards Board, as the same may be amended or supplemented from time to time;

"Indemnified Party" or "Indemnified Parties" has the meaning given to it in Section 9;

"Indenture" means the indenture dated as of June 24, 2020 among the Company (as issuer), Minera San Xavier S.A. de C.V. and New Gold CSP Ltd. (as guarantors) and Computershare Trust Company, N.A. (as trustee) relating to the aggregate principal amount of $400 million 7.50% senior notes due July 15, 2027;

"Intellectual Property" has the meaning given to it in Section 7(25);

"Issuer Free Writing Prospectus" means an "issuer free writing prospectus" as defined in Rule 433 under the U.S. Securities Act relating to the Offered Shares that (i) is required to be filed with the SEC by the Company, (ii) is a "road show that is a written communication" within the meaning of Rule 433(d)(8)(i) under the U.S. Securities Act whether or not required to be filed with the SEC or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) under the U.S. Securities Act because it contains a description of the Offered 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 SEC or, if not required to be filed, in the form retained in the Company's records pursuant to Rule 433(g) under the U.S. Securities Act;

"IT Systems and Data" has the meaning given to it in Section 7(56);

"ITA" means the Income Tax Act (Canada), as amended;

"Lead Underwriter" has the meaning given to it in the first paragraph of this Agreement;

"Marketing Documents" means any marketing materials approved in accordance with Section 3(2);

"marketing materials" has the meaning given to it in NI 41-101;

"Material Adverse Effect" or "Material Adverse Change" means any change, effect, event, occurrence, circumstance, violation or inaccuracy, as the case may be, that: (i) has or would reasonably be expected to have a material and adverse effect on the business, assets, properties, affairs, liabilities (absolute, accrued, contingent or otherwise), capitalization, condition (financial or otherwise), results of operations, cash flows or prospects of the Company and its subsidiaries (on a consolidated basis); or (ii) would result in any Offering Document containing a misrepresentation;

"Material Agreement" means any Debt Instrument, contract, commitment, agreement (written or oral), instrument, lease or license to which the Company or its subsidiaries are a party and which is material to the Company and its subsidiaries (on a consolidated basis), including, but not limited to, the Indenture, the Fourth Amended and Restated Credit Agreement, the New Afton PA Agreement, the New Afton Royalty Agreement, the New Afton Royalty Amending Agreement and any document filed as a material contract on SEDAR+ or EDGAR;

"material change" means a material change in or relating to the Company for the purposes of Applicable Securities Laws or any of them, or where undefined under the Applicable Securities Laws of an Offering Jurisdiction means a change in or relating to the business, operations or capital of the Company and its subsidiaries taken as a whole that would reasonably be expected to have a significant effect on the market price or value of any securities of the Company and includes a decision to implement such a change made by the board of directors of the Company or by senior management who believe that confirmation of the decision by the board of directors of the Company is probable;

"material fact means a material fact for the purposes of Applicable Securities Laws or any of them, or where undefined under the Applicable Securities Laws of an Offering Jurisdiction means a fact that would reasonably be expected to have a significant effect on the market price or value of any securities of the Company;

"Material Properties" means all of the tenements, concessions and claims associated with the New Afton Mine and the Rainy River Mine, as described, in all material respects, in the Technical Reports and the Offering Documents;

"Mining Rights" means all interests in mining claims, concessions, mining leases, leases of occupation, prospecting, exploration, exploitation, mining or extraction rights, participating interests or other property interests or rights or similar rights, as applicable, relating to the Material Properties;

"misrepresentation" means a misrepresentation for the purposes of the Applicable Securities Laws of an Offering Jurisdiction or any of them, or where undefined under the Applicable Securities Laws of an Offering Jurisdiction means: (i) an untrue statement of a material fact, or (ii) an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made;

"New Afton Mine" means the New Afton gold-copper mine in British Columbia, Canada;

"New Afton PA" means the purchase agreement between the Company and 2742150 Ontario Limited, an affiliate of OTPPB, dated February 24, 2020 in respect of certain interests in the New Afton Mine;

"New Afton Royalty Amending Agreement" means the partial repurchase and royalty amending agreement dated May 13, 2024 between the Company and an affiliate of OTPPB, pursuant to which the parties have agreed to amend the New Afton Royalty Agreement to reflect amendments with respect to certain interests OTPPB indirectly holds in New Afton;

"New Afton Royalty Agreement" means the free cash flow royalty agreement dated as of March 31, 2020 between the Company and an affiliate of OTPPB;

"Money Laundering Laws" has the meaning given to it in Section 7(52);

"NI 41-101" means National Instrument 41-101 - General Prospectus Requirements;

"NI 43-101" means National Instrument 43-101 - Standards for Disclosure for Mineral Projects;

"NI 44-101" means National Instrument 44-101 - Short Form Prospectus Distributions;

"NI 44-102" means National Instrument 44-102 - Shelf Distributions;

"NI 51-102" means National Instrument 51-102 - Continuous Disclosure Obligations;

"NYSE American" means the NYSE American LLC;

"OFAC" has the meaning given to it in Section 7(53);

"Offered Shares" has the meaning given to it in the second paragraph of this Agreement;

"Offering" means the sale of Offered Shares pursuant to this Agreement;

"Offering Documents" means the Canadian Offering Documents and the U.S. Offering Documents;

"Offering Jurisdictions" means the United States and the Qualifying Jurisdictions;

"Offering Price" has the meaning given to it in the first paragraph of this Agreement;

"Ontario WKSI Blanket Order" means Ontario Instrument 44-501 - Exemption from Certain Prospectus Requirements for Well-known Seasoned Issuers (Interim Class Order), as extended by OSC Rule 44-502 - Extension to Ontario Instrument 44-501 - Certain Prospectus Requirements for Well-Known Seasoned Issuers;

"Option Closing Date" has the meaning given to it in Section 15(1);

"Option Closing Time" has the meaning given to it in Section 15(1);

"OTPPB" means Ontario Teachers' Pension Plan Board;

"Over-Allotment Option" has the meaning given to it in the second paragraph of this Agreement;

"Person" shall be interpreted broadly and include any individual (whether acting as an executor, trustee administrator, legal representative or otherwise), partnership, limited partnership, limited liability partnership, corporation, limited liability company, unlimited liability company, joint stock company, trust, unincorporated association, joint venture or any other entity;

"Preliminary Prospectuses" has the meaning given to it in the fourth paragraph of this Agreement;

"Pricing Disclosure Package" has the meaning given to it in the seventh paragraph of this Agreement;

"Prospectus Supplements" has the meaning given to it in the fifth paragraph of this Agreement;

"Prospectuses" has the meaning given to it in the fifth paragraph of this Agreement;

"Purchasers" means, collectively, each of the purchasers of the Offered Shares arranged by the Underwriters pursuant to the Offering;

"Qualifying Jurisdictions" means each of the provinces and territories of Canada other than Québec, and such other jurisdictions to which the Underwriters and the Company may agree;

"Rainy River Mine" means the Rainy River gold-silver mine in Ontario, Canada;

"Receipt" means the receipt issued by the Commission, which is deemed to also be a receipt of the other Canadian Securities Commissions pursuant to Multilateral Instrument 11-102 - Passport System and National Policy 11-202 - Process for Prospectus Reviews in Multiple Jurisdictions, for the Canadian Base Shelf Prospectus and any Canadian Prospectus Amendment, as the case may be;

"Registration Statement" has the meaning given to it in the fourth paragraph of this Agreement;

"Returns" has the meaning given to it in Section 7(37);

"SEC" has the meaning given to it in the fourth paragraph of this Agreement;

"SEDAR+" means the System for Electronic Document Analysis and Retrieval +;

"Selling Firm" has the meaning given to it in Section 2(1);

"Shelf Information" has the meaning given to it in the fifth paragraph of this Agreement;

"Shelf Procedures" means NI 44-101 and NI 44-102;

"Standard Listing Conditions" has the meaning given to it in Section 14(1)(f);

"subsidiary" has the meaning given to it in the BCBCA;

"Supplementary Material" means, collectively, any amendment to the Offering Documents and any amendment or supplemental prospectus or ancillary materials that may be filed by or on behalf of the Company under Applicable Securities Laws relating to the Offering and/or the distribution of the Offered Shares;

"Technical Reports" means, collectively, the following technical reports of the Company: (i) "NI 43-101 Technical Report for the Rainy River Mine, Ontario, Canada" with an effective date of March 28, 2022; and (ii) "Technical Report on the New Afton Mine, British Columbia, Canada" dated February 28, 2020;

"template version" has the meaning ascribed to such term in NI 41-101 and includes any revised template version of marketing materials as contemplated by NI 41-101;

"TSX" means the Toronto Stock Exchange;

"Underwriters" has the meaning given to it in the first paragraph of this Agreement;

"Underwriting Commission" has the meaning given to it in the ninth paragraph of this Agreement;

"United States" means the United States of America, its territories and possessions, any State of the United States and the District of Columbia;

"U.S. Amended Prospectus" means any amendment or supplement to the U.S. Prospectus;

"U.S. Base Prospectus" has the meaning given to it in the fourth paragraph of this Agreement;

"U.S. Exchange Act" means the United States Securities Exchange Act of 1934, as amended;

"U.S. Offering Documents" means the Registration Statement, any U.S. Registration Statement Amendment, the U.S. Prospectus, any U.S. Amended Prospectus and the Pricing Disclosure Package;

"U.S. Preliminary Prospectus" has the meaning given to it in the fourth paragraph of this Agreement;

"U.S. Preliminary Prospectus Supplement" has the meaning given to it in the fourth paragraph of this Agreement;

"U.S. Prospectus" has the meaning given to it in the fifth paragraph of this Agreement;

"U.S. Prospectus Supplement" has the meaning given to it in the fifth paragraph of this Agreement;

"U.S. Registration Statement Amendment" means any amendment to the Registration Statement and any post- effective amendment to the Registration Statement filed with the SEC during the Distribution of the Offered Shares;

"U.S. Securities Act" has the meaning given to it in the fourth paragraph of this Agreement;

"U.S. Securities Laws" means all applicable United States securities laws, including, without limitation, the U.S. Securities Act, the U.S. Exchange Act and the rules and regulations promulgated thereunder; and

"WKSI Blanket Orders" has the meaning given to it in the third paragraph of this Agreement.

The following are the schedules to this Agreement, which schedules are deemed to be a part hereof and are hereby incorporated by reference herein

Schedule "A" - Matters to be Addressed in the Company's Canadian Counsel Opinion

Schedule "B" - Pricing Terms Included in the Pricing Disclosure Package

Schedule "C" - Form of Lock-Up Agreement

in each case, which fact or change is, or may reasonably be expected to be, of such a nature as (x) to render any statement in such Canadian Offering Documents, as they exist taken together in their entirety immediately prior to such change, misleading or untrue in any material respect, (y) which would result in the Canadian Offering Documents, as they exist immediately prior to such change, containing a misrepresentation or which would result in the Canadian Offering Documents, as they exist immediately prior to such change, not complying in any material respect with the laws of any Qualifying Jurisdiction in which the Offered Shares are to be offered for sale, or (z) which change would reasonably be expected to have a significant effect on the market price or value of any securities of the Company; or

provided, that with respect to (i) clauses (a) and (c) of this Section 5(1), if the documents are publicly available on SEDAR+, they shall be deemed to have been delivered to the Underwriters as required by this Section 5(1); and (ii) clauses (b) and (d) of this Section 5(1), if the documents are publicly available on EDGAR, they shall be deemed to have been delivered to the Underwriters as required by this Section 5(1).

The Company will make all necessary filings, obtain all necessary consents and approvals (if any) and pay all filing fees required to be paid in connection with the transactions contemplated by this Agreement. The Company will qualify the Offered Shares for offer and sale under the Applicable Securities Laws of the Offering Jurisdictions and maintain such qualifications in effect for so long as required for the Distribution of the Offered Shares; provided, however, that (i) the Company shall not be obligated to make any material filing, file any prospectus, registration statement or similar document, consent to service of process, or qualify as a foreign corporation or as a dealer in securities in any of such other jurisdictions, or subject itself to taxation in respect of doing business in any of such other jurisdictions in which it is not otherwise so subject, or become subject to any additional periodic reporting or continuous disclosure obligations in such other jurisdictions and (ii) the Underwriters and the Selling Firms shall comply in all material respects with the applicable laws in any such designated jurisdiction in making offers and sales of Offered Shares therein.

The Company represents and warrants to each of the Underwriters as set forth below and acknowledges that the Underwriters are relying on such representations and warranties in entering into this Agreement.

and to reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with any Claim; except that, if and to the extent that a court of competent jurisdiction in a final judgement that has become non-appealable determines that a Claim was caused by or resulted from an Indemnified Party's breach of this Agreement or breach of applicable laws, or the fraud, gross negligence or wilful misconduct of the Indemnified Party claiming indemnity, such Indemnified Party shall reimburse any funds advanced by the Company to such Indemnified Party in respect of such Claim and thereafter such Indemnified Party shall be disentitled to indemnification pursuant to this Section 9(1) shall cease to apply to such Indemnified Party in respect of such Claim. For greater certainty, the Company and the Underwriters agree that they do not intend that any failure by the Underwriters to conduct such reasonable investigation as necessary to provide the Underwriters with reasonable grounds for believing the Prospectuses contained no misrepresentation shall constitute "gross negligence" or "wilful misconduct" for purposes of this Section 9 or otherwise disentitle the Underwriters from indemnification hereunder.

provided that the Underwriters shall not in any event be liable to contribute, in the aggregate, any amount in excess of the Underwriting Commission or any portion thereof actually received.

The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same ratio as the total proceeds from the offering of the Firm Shares and Additional Shares, if any, (net of the Underwriting Commission payable to the Underwriters but before deducting expenses) received by the Company is to the Underwriting Commission received by the Underwriters.

The relative fault of the Company on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the matters or things referred to in this Section 9 which resulted in such liabilities, claims, demands, losses, costs, damages and expenses relate to information supplied by or steps or actions taken or done or not taken or done by or on behalf of the Company or to information supplied by or steps or actions taken or done or not taken or done by or on behalf of the Underwriters and the relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or misrepresentation, or other matter or thing referred to in this Section 9. The amount paid or payable by an Indemnified Party as a result of the liabilities, claims, demands, losses, costs, damages and expenses referred to above shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such liabilities, claims, demands, losses, costs, damages and expenses, whether or not resulting in an action, suit, proceeding or claim.

The parties agree that it would not be just and equitable if contribution pursuant to this Section 9(4) were determined by any method of allocation which does not take into account the equitable considerations referred to in this Section 9(4).

and the Company will use its reasonable best efforts to prevent the issuance of any order referred to in subparagraph (b)(i) above or subparagraph (b)(ii) above and, if any such order is issued, to obtain the withdrawal thereof at the earliest possible time;

The Company agrees that the conditions contained in this Agreement will be complied with insofar as the same relate to acts to be performed or caused to be performed by the Company. It is understood that the Underwriters may waive, in whole or in part, or extend the time for compliance with, any of such terms and conditions without prejudice to the rights of the Underwriters in respect of any such terms and conditions or any other or subsequent breach or non- compliance, provided that to be binding on the Underwriters any such waiver or extension must be in writing and signed by the Underwriters.

The Company will be solely responsible for all expenses related to the Offering, including all fees and disbursements of its counsel, its "out of pocket" costs, printing costs and filing fees, whether or not the Offering is completed. For the avoidance of doubt, the Underwriters shall pay all of their own costs and expenses, including the fees of their counsel, and any experts or consultants retained by them, in connection with the transactions contemplated by this Agreement. If the Offering is not completed due to a breach of this Agreement by the Company, the Company will reimburse the Underwriters for their reasonable expenses incurred pursuant to this Agreement.

The Company acknowledges and agrees that (a) the purchase and sale of the Offered Shares pursuant to this Agreement, including the determination of the Offering Price of the Offered Shares and any related discounts and commissions, is an arm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the Offering and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its shareholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favour of the Company with respect to the Offering or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the Offering except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the Offering and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deems appropriate.

Any notice to be given hereunder shall be in writing and may be given by email or by hand delivery and shall, in the case of notice to the Company, be addressed and emailed or delivered to:

New Gold Inc.

Suite 3320, 181 Bay Street

Toronto, Ontario M5J 2T3

with a copy to (such copy not to constitute notice)

Davies Ward Phillips & Vineberg LLP

155 Wellington Street West, 40^th Floor
Toronto, ON M5V 3J7

-and-

Paul, Weiss, Rifkind, Wharton & Garrison LLP

Toronto-Dominion Centre
77 King Street West, Suite 3100
P.O. Box 226
Toronto, ON M5K 1J3

and in the case of the Lead Underwriter (on behalf of the Underwriters), be addressed and emailed or delivered to:

CIBC World Markets Inc.

161 Bay Street
Toronto, Ontario M5J 2S8

with a copy to (such copy not to constitute notice)

Borden Ladner Gervais LLP

Suite 3400, 22 Adelaide Street West

Toronto, Ontario M5H 4E3

-and-

Skadden, Arps, Slate, Meagher & Flom LLP

222 Bay Street, Suite 1750

Toronto, Ontario M5K 1J5

The Company and the Lead Underwriter may change their respective addresses for notice by notice given in the manner referred to above.

All steps which must or may be taken by the Underwriters in connection with this Underwriting Agreement, with the exception of the matters contemplated by Section 9 and Section 12, shall be taken by the Lead Underwriter on the Underwriters' behalf and the execution of the Agreement by the Underwriters shall constitute the Company's authority for accepting notification of any such steps from, and for giving notice to, for delivering any electronic deposits or definitive certificate(s) representing the Offered Shares and for paying the Underwriting Commission to, or to the order of, the Lead Underwriter.

The representations, warranties, obligations and agreements of the Company and of the Underwriters contained herein or delivered pursuant to this Agreement shall survive the purchase by the Underwriters of the Offered Shares for a period of three years following the Closing Date and shall continue in full force and effect notwithstanding any subsequent disposition by the Underwriters of the Offered Shares and the Underwriters shall be entitled to rely on the representations and warranties of the Company contained in or delivered pursuant to this Agreement notwithstanding any investigation which the Underwriters may undertake or which may be undertaken on the Underwriters' behalf.

(1) Sole Bookrunner. 5% work fee payable to CIBC World Markets Inc.

(2) Co-lead Manager.

In connection with the distribution of the Offered Shares, the Underwriters (or any of them) may effect transactions which stabilize or maintain the market price of the Common Shares at levels other than those which might otherwise prevail in the open market, but in each case as permitted by Applicable Securities Laws. Such stabilizing transactions, if any, may be discontinued by the Underwriters at any time.

Any and all previous agreements with respect to the purchase and sale of the Offered Shares, whether written or oral, including for the avoidance of doubt, the bid letter dated May 13, 2024 between the Company and the Lead Underwriter, are terminated and this Agreement constitutes the entire agreement between the Company and the Underwriters with respect to the purchase and sale of the Offered Shares.

This Agreement shall be governed by and construed in accordance with the laws in force in the Province of Ontario and the federal laws of Canada applicable therein.

Certain of the Underwriters or affiliates thereof, each own or control an equity interest in TMX Group Limited ("TMX Group") and may have a nominee director serving on the TMX Group's board of directors. As such, such investment dealers may be considered to have an economic interest in the listing of securities on any exchange owned or operated by TMX Group, including the Toronto Stock Exchange. No Person is required to obtain products or services from TMX Group or its affiliates as a condition of any such dealer supplying or continuing to supply a product or service.

Time shall be of the essence of this Agreement. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument.

[Signature page follows]

If the foregoing is in accordance with your understanding and is agreed to by you, will you please confirm your acceptance by signing the enclosed copies of this Agreement at the place indicated and returning the same to us.

Yours truly,

The foregoing is in accordance with our understanding and is accepted by us.

Schedule "A"
MATTERS TO BE ADDRESSED IN THE COMPANY'S CANADIAN COUNSEL OPINION

(a)            the Company is an amalgamated company and validly existing under the laws of British Columbia and is in good standing with respect to the filing of annual reports;

(b)            the Company has all necessary corporate power and capacity to own and lease assets and to carry on business as described in the Canadian Prospectus and the Company has the necessary corporate power and capacity to execute and deliver this Agreement and to carry out the transactions contemplated hereby;

(c)            the authorized and issued capital of the Company;

(d)            all necessary corporate action having been taken by Company to authorize: (i) the execution and delivery of this Agreement and the performance by the Company of its obligations hereunder including the issue, sale and delivery of the Firm Shares, the grant of the Over-Allotment Option and the issue, sale and delivery of the Additional Shares upon exercise of the Over-Allotment Option; and (ii) to authorize the issuance, sale and delivery to the Underwriters the Firm Shares and the Additional Shares, if any, pursuant to this Agreement;

(e)            the Firm Shares have been duly authorized and when issued, delivered and paid for in accordance with the terms of the this Agreement, will be validly issued as fully paid and non-assessable Common Shares;

(f)            the Additional Shares, if any, have been duly authorized and when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued as fully paid and non-assessable Common Shares;

(g)            the Company has all necessary corporate power and capacity to execute and deliver this Agreement and perform its obligations under this Agreement;

(h)            all necessary corporate action has been taken by or on behalf of the Company to authorize the execution of each of the Canadian Base Shelf Prospectus, the Canadian Prospectus Supplement and, if applicable, any Supplementary Material thereto and the filing thereof with the Canadian Securities Commissions;

(i)            this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms;

(j)            the execution and delivery by the Company of this Agreement and the performance by the Company of its obligations under this Agreement (including the issue, sale and delivery of the Firm Shares and, if any, the Additional Shares) do not and will not result in a breach (whether after notice or lapse of time or both) of any of the terms, conditions or provisions of the articles or notice of articles of the Company;

(k)            Computershare Investor Services Inc. is the duly appointed registrar and transfer agent for the common shares of the Company;

(l)            all necessary documents have been filed, all necessary proceedings have been taken and all necessary approvals, permits, consents and authorizations of the Canadian Securities Commissions have been obtained, in each case by the Corporation under Canadian Securities Laws, to qualify the distribution of the Offered Shares to the public in the Qualifying Jurisdictions by or through persons or companies who are registered in an appropriate category of registration under Canadian Securities Laws and who have complied with the relevant provisions of such Canadian Securities Laws and the terms and conditions of their registration; and

(m)          subject to the qualifications, assumptions, limitations, exceptions and understandings set out in the Canadian Prospectus Supplement under the headings "Certain Canadian Federal Income Tax Considerations" and "Eligibility For Investment", insofar as the statements under such headings constitute statements of law, such statements are an accurate summary, in all material respects, of the matters described therein.

Schedule "B"
PRICING TERMS INCLUDED IN PRICING DISCLOSURE PACKAGE

The price per share for the Common Shares is US$1.72.

The number of Common Shares purchased by the Underwriters is 87,300,000.

The Company has granted the Underwriters an option, exercisable, in whole or in part, at any time until and including 30 days following the closing of the Offering, to purchase up to an additional 13,095,000 Common Shares at US$1.72 per Common Share to cover over-allotments, if any.

The Underwriters receive 4.0% cash commission.

Issuer Free Writing Prospectuses: Press release dated May 13, 2024 announcing the Offering

Schedule "C"
FORM OF Lock-Up Agreement

___, 2024

CIBC World Markets Inc.

BMO Nesbitt Burns Inc.

RBC Dominion Securities Inc.

Scotia Capital Inc.

National Bank Financial Inc.

TD Securities Inc.

Merrill Lynch Canada Inc.

Canaccord Genuity Corp.

Laurentian Bank Securities Inc.

Raymond James Ltd.

Re: New Gold Inc. - Lock-Up Agreement

The undersigned, a director or executive officer of New Gold Inc. (the "Corporation"), understands that CIBC World Markets Inc. (the "Lead Underwriter") and BMO Nesbitt Burns Inc., RBC Dominion Securities Inc., Scotia Capital Inc., National Bank Financial Inc., TD Securities Inc., Merrill Lynch Canada Inc., Canaccord Genuity Corp., Laurentian Bank Securities Inc. and Raymond James Ltd. (together with the Lead Underwriter, the "Underwriters" and each individually an "Underwriter") have entered into an underwriting agreement, dated May 14, 2024, with the Corporation providing for a public offering in Canada and the United States (the "Offering") of common shares of the Corporation. The undersigned also acknowledges that the Underwriters have requested that the undersigned enter into this agreement as a condition to the completion of the Offering and that, in consideration of the Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged by the undersigned, the undersigned has agreed to enter into this agreement (the "Lock-Up Agreement") in favour of the Underwriters.

The undersigned represents and agrees that during the period beginning from the date hereof and ending 90 days from the closing date of the Offering (the "Lock-Up Period"), he, she or it shall not (and shall cause its affiliates not to) directly or indirectly, offer, sell, contract to sell, transfer, assign, pledge, grant any option to purchase, make any short sale or otherwise dispose of or monetize any common shares of the Corporation, or any options or warrants to purchase any common shares of the Corporation, or any securities convertible into, exchangeable for, or that represent the right to receive, common shares of the Corporation, now owned directly or indirectly by the undersigned, or under control or direction of the undersigned or with respect to which the undersigned has beneficial ownership (collectively, the "Undersigned's Securities"), or subsequently acquired, directly or indirectly by the undersigned, or under control or direction of the undersigned or with respect to which the undersigned acquires beneficial ownership (together with the Undersigned's Securities, the "Locked-up Securities") or enter into any swap, forward or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of the Locked-up Securities (regardless of whether any such arrangement is to be settled by the delivery of securities of the Corporation, securities of another person, cash or otherwise) or agree to do any of the foregoing or publicly announce any intention to do any of the foregoing.

Notwithstanding the foregoing, the undersigned may offer, sell, contract to sell, transfer, assign, pledge, grant an option to purchase, make any short sale or otherwise dispose of any of the Locked-up Securities, or enter into any swap, forward or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of the Locked-up Securities, whether directly or indirectly, during the Lock- Up Period:

The undersigned understands that the Corporation and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's legal representatives, successors, and assigns, and shall enure to the benefit of the Corporation, the Underwriters and their legal representatives, successors and assigns. This Lock-Up Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and the parties hereto hereby agree to attorn to the non-exclusive jurisdictions of the court of the Province of Ontario in connection with any dispute or claim hereunder.

DATED as of the date first written above.

Attachments

• Original Link
• Permalink

Disclaimer

New Gold Inc. published this content on 15 May 2024 and is solely responsible for the information contained therein. Distributed by Public, unedited and unaltered, on 15 May 2024 11:49:13 UTC.