Energy Fuels Inc.: Form F-4 - Filed by newsfilecorp.com







AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER 

THIS AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER dated as of
May 8, 2015 (this “Amendment”), is by and among Uranerz Energy
Corporation, a corporation organized under the laws of the state of Nevada (the
“Target”), Energy Fuels Inc., a corporation organized under the laws of
the province of Ontario, Canada (“Parent”), and EFR Nevada Corp., a
corporation organized under the laws of the state of Nevada and an indirect
wholly owned subsidiary of Parent (“Merger Sub”) (each a “Party”
and together the “Parties”). 

WHEREAS, the Parties previously entered into that certain
Agreement and Plan of Merger dated as of January 4, 2015 (the “Merger
Agreement”), pursuant to which, among other things, Merger Sub shall
merge with and into the Target (the “Merger”) and the Target shall
continue as the surviving corporation in such Merger (capitalized terms used
herein and not defined herein shall have the meanings ascribed to them in the
Merger Agreement);

WHEREAS, Section 11.15 of the Merger Agreement permits the
Parties to amend the Merger Agreement; and 

WHEREAS, the Parties desire to amend the Merger Agreement as
set forth below. 

NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows: 

1.         Amendment to Section 1.3 of the Merger Agreement.
Section 1.3 of the Merger Agreement shall be deleted in its entirety and
replaced with the following: 

“1.3 Governance of Parent. The Parent shall, in
accordance with all applicable corporate, NYSE MKT LLC (“NYSE MKT”) and
TSX laws, rules and regulations, take all actions necessary to cause the
appointment of two (2) existing members of the board of directors of Target to
the board of directors of Parent such that the board of directors of Parent is
constituted as provided in Section 7.13 of this Agreement as of the Effective
Time.” 

2.         Amendment to Section 3.2(h) of the Merger Agreement.
Section 3.2(h) of the Merger Agreement shall be deleted in its entirety and
replaced with the following: 




“(h) Withholding. Each of Parent, the Surviving Entity
and the Exchange Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder of
Target Common Shares or Target Warrants such amounts as Parent, the Surviving
Entity or the Exchange Agent determine are required to be deducted and withheld under the Code or any provision of
state, local, or foreign Tax Law (the “Withholding Amount”). With respect
to the making of such payment, such withholding of Parent Common Shares issued
to any holder of Target Warrants shall be an amount determined by Parent to be
reasonably necessary to satisfy the Parent’s withholding obligation. To the
extent that amounts are withheld by Parent, the Surviving Entity or the Exchange
Agent, such withheld amounts shall be treated for all purposes of this Agreement
as having been paid to the holder of Target Common Shares or Target Warrants in
respect of which such deduction and withholding was made by Parent, the
Surviving Entity or the Exchange Agent, as the case may be. Parent and Target
shall cooperate with and assist each other with efforts to reduce or eliminate
such withholding Taxes. At the Closing, Parent and any holder of Target Common
Shares (who does not also hold Target Warrants) subject to withholding under
this section will direct the Exchange Agent to deliver 90% of the Parent Common
Shares to such holder (or as it may otherwise direct) and to sell to a third
person (and under no circumstances shall the Parent redeem, acquire, or cancel
such Parent Common Shares) 10% of the Parent Common Shares to be received in the
Transaction (the “Withholding Shares”) by such holder to satisfy the
withholding obligation as soon as reasonably possible after the Closing and to
deliver all of the proceeds from selling of the Withholding Shares to Parent.
Parent will then remit the Withholding Amount to the appropriate Government
Authorities for the account of such holders within the time limits prescribed by
applicable Tax Laws. Parent will have no further recourse against such holders
with respect to the Withholding Amount and, upon remittance of the required
Withholding Amount under applicable Tax Laws, such holders will have no further
recourse against Parent with respect to such Withholding Shares. If, (a) the
proceeds from the sale of the Withholding Shares is less than the Withholding
Amount, such holder shall have no liability to Parent to pay such difference,
and (b) the proceeds from the sale of the Withholding Shares is greater than the
Withholding Amount, the holder shall have no entitlement to such excess amount.” 

3.         Amendment to Section 4.23 of the Merger Agreement.
Section 4.23 of the Merger Agreement shall be deleted in its entirety and
replaced with the following: 

“4.23 FIRPTA. The Target Common Shares shall be
“regularly traded” on an established securities market within the meaning of
Treasury Regulation section 1.897 -9T(d). Other than as disclosed in Section
4.23 of the Target Disclosure Letter, no Target shareholder or Target Warrant
holder who is a “foreign person” (as defined in Section 1445(f)(3) of the Code)
holds or has held (pursuant to the constructive ownership rules of Section
318(a) of the Code): (i) more than 5% of Target Common Shares at any time during
the 5-year period ending on Closing Date; (ii) Target Warrants with a fair
market value on the date acquired by such Target Warrant holder greater than the
fair market value on that date of 5% of the Target Common Shares; or (iii)
aggregate equity securities of Target with a fair market value on the date
acquired in excess of 5% of the fair market value of Target Common Shares on
such date.” 

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4.         Amendment to Section 7.13 of the Merger Agreement.
Section 7.13 of the Merger Agreement shall be deleted in its entirety and
replaced with the following: 

“7.13 Parent Shareholders’ Meeting. Parent shall, as
promptly as reasonably practicable after the Form F-4 has been declared
effective under the Securities Act, (i) take all steps reasonably necessary to
call, give notice of, convene and hold a special (or annual and special) meeting
of its shareholders (the “Parent Meeting”) for the purpose of securing
the Parent Shareholders’ Approval, (ii) distribute to its shareholders a
management information circular in accordance with applicable Law (the
“Parent MIC”), which Parent MIC shall contain the recommendation of the
Parent board of directors that its shareholders approve this Agreement, (iii)
use its commercially reasonable efforts to solicit from its shareholders proxies
in favor of the approval of this Agreement and to secure the Parent
Shareholders’ Approval and (iv) cooperate and consult with Target with respect
to each of the foregoing matters. Notwithstanding any Adverse Recommendation
Change by the Target board of directors or the commencement, public proposal,
public disclosure or communication to Parent by Target of any Acquisition
Proposal with respect to Target or any of its Subsidiaries, or any other fact or
circumstance (except for termination of this Agreement pursuant to Article X),
this Agreement shall be submitted to the shareholders of Parent at the Parent
Meeting for the purpose of adopting this Agreement, with such disclosures as
shall be required by applicable Law. As of the Effective Time, and subject to
applicable Law, Parent shall appoint Dennis Higgs and Glenn Catchpole, each of
which are existing members of the board of directors of Target, to the board of
directors of Parent which shall be comprised of eight (8) members.” 

5.         No Other Amendments. The Parties each hereby
acknowledge, agree and understand that except as expressly set forth above, this
Amendment (i) shall not amend, modify or otherwise impact any provision of the
Merger Agreement, all of which shall remain in effect, and (ii) shall not serve
as a waiver of, and shall be without prejudice to, any rights, remedies, claims
or defenses of any Party under the Merger Agreement or otherwise, all of which
are expressly reserved by the respective Parties.

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6.         Applicable Law. This Amendment shall be construed,
interpreted, and governed in accordance with the laws of the state of
Nevada, without reference to rules relating to conflicts of law. 

7.         Counterparts. This Amendment may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the Parties and delivered to the other Parties. A signed copy
of this Amendment delivered by facsimile, e-mail or other means of electronic
transmission shall be deemed to have the same legal effect as delivery of an
original signed copy of this Amendment. 

[SIGNATURE PAGE FOLLOWS] 

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IN WITNESS WHEREOF, Parent, Merger Sub and the Target
have caused this Amendment to be executed by their respective officers thereunto
duly authorized, all as of the date first written above. 

ENERGY FUELS INC. 

By: /s/ Stephen P. Antony 

  Name:
Stephen P. Antony 

Title: President and CEO

EFR NEVADA CORP. 

By: /s/ David Frydenlund 

Name: David Frydenlund 

Title: Secretary

URANERZ ENERGY CORPORATION 

By: /s/ Glenn Catchpole
Name: Glenn Catchpole

Title: Chief Executive Officer

[Signature Page to Amendment of Merger Agreement]

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