Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities and the Closing will be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters: (a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition; (b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing; (c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:
Appears in 1 contract
Sources: Underwriting Agreement (Algonquin Power & Utilities Corp.)
Conditions of Closing. 9.1 4.1 The Recipient shall not be obligated to complete the purchase and sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersRecipient:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents representations and acceptances warranties of the appropriate Securities Commissions, Vendors in this Agreement shall be true and correct in all material respects at the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionClosing;
(b) the directors covenants and conditions of the Corporation Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have authorized been performed and approved this Agreement, the issuance of the Purchased Securities, and observed in all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingmaterial respects;
(c) it shall be the case that, receipt of any consents contemplated by this Agreement or otherwise necessary for this Agreement and the Corporation will deliver to the Underwriters a certificate completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersRecipient, and all such approvals being in full force and effect;
(d) addressed the Company and the Recipient shall have determined the Exchange Ratio;
(e) all holders of the Company Shares, the Company Options and the Company Warrants shall have duly executed and delivered Joinder Agreements to the Underwriters Recipient; and
(f) the Board of Directors of the Company shall have approved the transfer of the Company Shares, the Company Options and dated the Closing Date Company Warrants contemplated in form satisfactory this Agreement, in accordance with the Articles of the Company.
4.2 If any condition in section 4.1 hereof has not been fulfilled or if any such condition is or becomes impossible to their counselsatisfy, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPother than as a result of the failure of the Recipient to comply with its obligations under this Agreement, certifying thatthen the Recipient may, without limiting any rights or remedies available to the Recipient at law or in equity, either:
(a) terminate this Agreement by notice to the Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale obligations of the Purchased Securities and the Closing will parties hereunder shall at all times be conditional upon and subject to the continued accuracy of all representations and warranties of the parties contained herein as though such representations and warranties had been made at and as of such times, and the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersadditional conditions:
(a) The Registration Statement shall have become effective and no stop order suspending the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances effectiveness of the appropriate Securities Commissions, the Exchange Registration Statement shall have been issued and the NYSE required to be made no proceeding for that purpose shall have been initiated or obtained threatened by the Corporation prior to SEC; and all requests for additional information on the Time part of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters SEC shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionhave been complied with;
(b) the directors of the Corporation SSB shall have authorized and approved this Agreement, the issuance received an opinion of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇Will▇▇▇ ▇▇▇▇ & ▇▇ LLPall▇▇▇▇▇, certifying ▇▇ted the Closing Date (as defined in Paragraph 7 below), in form and substance satisfactory to it, to the effect that:
(i) The Partnership has been duly formed and is validly existing as a limited partnership under the Partnership Law with full partnership power and authority to carry out its obligations under this Agreement and the Partnership Agreement, and to conduct its business as described in the Prospectus, and, to the best of the knowledge of such counsel, the Partnership conducts no business and owns or leases no properties which would require it to qualify to do business as a foreign organization in any jurisdiction;
(ii) The offer and sale of the Units has been duly authorized by the Partnership and the Units constitute valid limited partnership interests in the Partnership which conform to the description thereof contained in the Prospectus; and the liability of each limited partner will be limited as set forth in the Prospectus, and no limited partner will be subject to personal liability for the debts, obligations, or liabilities of the Partnership by reason of his being a limited partner, other than as described in the Prospectus;
(iii) The offer and sale of the Units and the compliance by the Partnership with all of the provisions of this Agreement will not conflict with or result in a breach of any of the terms or provisions of the Partnership Certificate or Partnership Agreement, or, to the best of the knowledge of such counsel, any agreement to which the Partnership is a party or by which it is bound;
(iv) To the best of the knowledge of such counsel, there is no action, suit, litigation or proceeding before or by any court or governmental agency, federal, state or local, pending or threatened against, or affecting or involving the property or business of SBFM, or the business of the Partnership, that would materially and adversely affect the condition (financial or otherwise), business or prospects of SBFM or the Partnership; and
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued nor has any proceeding for the issuance of such an order been initiated or threatened.
Appears in 1 contract
Sources: Selling Agreement (Salomon Smith Barney Global Diversified Futures Fund L P)
Conditions of Closing. 9.1 4.01. Buyer, AFC, AHC, Eagle and ▇▇▇▇▇▇ Conditions. The purchase obligations of Buyer, AFC, AHC, Eagle and sale ▇▇▇▇▇▇ under this Agreement are subject, at their option, to compliance by Seller, PFDC and PICD in all material respects with the covenants to be performed by Seller, PFDC and PICD, respectively, as set forth in Article III hereof, the contribution of the Purchased Securities PICD PANS pursuant to Section 1.01 hereof, the delivery of Deep Seas LP Interest to Buyer pursuant to Section 1.02 hereof, and the Closing will be conditional upon and subject to the satisfaction of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(a) the Corporation will Each of Seller, PFDC and PICD shall have made or obtained the necessary filingsdelivered a certificate to Buyer, approvals, consents and acceptances dated as of the appropriate Securities CommissionsClosing Date, stating that the Exchange representations and warranties made by Seller, PFDC and PICD in Section 2.01 hereof are true and correct as of the NYSE required Closing Date.
(i) No action or proceeding shall have been instituted before a court or other governmental body by any person, governmental agency, or public authority to be made restrain or obtained prohibit the transactions contemplated by the Corporation prior this Agreement; and (ii) no governmental agency shall have given notice to the Time of Closing in order to complete the Offering as herein contemplated, it being understood effect that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors consummation of the Corporation shall have authorized and approved transactions contemplated by this Agreement, the issuance Agreement would constitute a violation of any law or that it intends to commence proceedings to restrain consummation of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;transactions contemplated hereby.
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇, AFC, AHC, Eagle and Buyer shall have received from ▇▇. ▇▇▇▇ ▇. Messing, counsel to Seller, PFDC and PICD, an opinion dated as of the Closing Date in substantially the form of that attached hereto as Exhibit A.
(d) All necessary consents (in form and substance satisfactory to Seller and Buyer) to the transaction contemplated hereby required to have been obtained from the parties to the Ancillary Agreements, the Partnership Agreement and the Amended and Restated Master Loan Restructuring Agreement ("ARMLRA") dated November 12, 1992 by and among Deep Seas, Ltd., Texas Commerce Bank National Association, Federal Deposit Insurance Corporation, Chemical Bank and ▇▇▇▇▇▇ LLP(and any assignee thereof) shall have been obtained and PICD shall have paid the reasonable fees and expenses of counsel to Chemical Bank, certifying that:as Agent, in connection therewith.
(e) Simultaneous with the Closing hereunder (i) Falcon, Ltd. shall have sold its assets to ▇▇▇▇▇▇ Oceanics Pacific Ltd. and (ii) Falcon, Ltd. shall have dissolved and distributed its assets in accordance with that certain Partnership Dissolution Agreement dated of even date herewith, effective December 31, 1994.
(f) The Terminated Ancillary Agreements shall be terminated without liability to the parties thereunder.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities and the Closing will be conditional upon and Units is subject to the following conditions being fulfilled at or prior accuracy of the representations and warranties of the parties hereto, to the Time performance by such parties of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior their respective obligations hereunder and to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing further conditions:
(a) The Registration Statement shall have become effective and at each Closing Date no order suspending the Corporation will effectiveness thereof shall have made been issued under the 1933 Act or obtained proceeding therefor initiated or threatened by the necessary filingsSEC, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required NFA shall have accepted the Prospectus as a Disclosure Document pursuant to be made or obtained by the Corporation prior to the Time CFTC Regulations and NFA Rules without a finding of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;further deficiencies.
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained At or prior to the Time of Closing;
(c) it shall be the case thatInitial Closing Date, and the Corporation will deliver Katten Muchin Zavis Rosenman counsel to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counselGeneral Partner, sha▇▇ ▇▇▇▇▇▇▇ ▇▇s ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ LLPand substance satisfactory to the parties hereto, certifying to the effect that:
(i) The Fund is a limited partnership existing under the laws of the State of Illinois with full partnership authority to conduct the business in which it engages as described in the Registration Statement, the Prospectus and herein.
(ii) The General Partner is a limited liability company existing and in good standing under the laws of the State of Illinois. The General Partner has limited liability company authority to perform its obligations as described in the Registration Statement, the Prospectus and herein.
(iii) This Agreement has been duly authorized, executed and delivered by the Fund and the General Partner and the performance by the Fund and the General Partner of the transactions contemplated herein and set forth in the Prospectus will not, to the knowledge of such counsel, result in a breach or violation of any of the terms or provisions of or constitute a default under (i) any material contracts, indentures, deeds of trust, loan agreements, notes, leases or other agreements as listed on an exhibit to such opinion (the "MATERIAL CONTRACTS"), (ii) the General Partner's certificate of formation or limited liability company operating agreement, (iii) any laws or administrative rules or regulations normally applicable to transactions of the type contemplated hereby or in the Prospectus, or (iv) any order, writ, injunction or decree known to such counsel of any court or any governmental body or administrative agency having jurisdiction over the General Partner or the Fund.
(iv) The Limited Partnership Agreement has been duly authorized, executed and delivered by the General Partner and constitutes a valid and binding obligation of the General Partner enforceable against the General Partner, subject to the effects of: (1) bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, receivership, moratorium and other similar laws (including judicially developed doctrines with respect to such laws) affecting the rights and remedies at the time in effect affecting the enforceability of creditors generally; (2) general principles of equity, whether applied by a court of law or equity with respect to performance and enforcement of the Limited Partnership Agreement; and (3) any limitations under federal securities laws and other applicable laws and considerations of public policy that relate to indemnification and contribution. The execution and delivery of the Limited Partnership Agreement, and the incurrence of the obligations therein and the consummation of the transactions contemplated therein will not result in a breach or violation of any of the terms or provisions of or constitute a default under (i) any Material Contracts, (ii) the General Partner's certificate of formation or limited liability company operating agreement, (iii) any laws or administrative rules or regulations normally applicable to transactions of the type contemplated thereby, or (iv) any order, writ, injunction or decree known to such counsel of any court or any governmental body or administrative agency having jurisdiction over the General Partner or the Fund.
(v) No filing, order, authorization, approval or consent of any court, governmental or self-regulatory agency or body is necessary in connection with the subscription for and sale of the Units, except such as may be required under the 1933 Act, the Commodity Act, the NFA Rules, NASD rules and applicable state securities or "Blue Sky" laws.
(vi) Assuming that all action required to be taken by the General Partner and the Fund as a condition to the subscription for and sale of the Units to qualified subscribers therefor has been taken, and, upon payment of the consideration therefor specified in the accepted Subscription Agreements and Powers of Attorney and satisfaction of all applicable subscription requirements by such subscribers, the Units will constitute valid units of limited partnership interest in the Fund, and each subscriber who purchases Units will become a Limited Partner with limited personal liability to the extent provided for under the Illinois Act.
(vii) The information in the Prospectus under the caption "U.S. Federal Income Tax Consequences," to the extent that such information constitutes matters of law or legal conclusions, has been reviewed by such counsel and is correct in all material respects, insofar as it relates to the income tax consequences to the Fund and to the federal income tax consequences of an investment in the Fund by U.S. individual taxpayers.
(viii) The Registration Statement is effective under the 1933 Act and, to the knowledge of such counsel, no proceeding for a stop order is pending or threatened under Section 8(d) or Section 8(e) of the 1933 Act or any applicable state "Blue Sky" laws.
(ix) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus and any amendments or supplements thereto were first issued, the Prospectus (other than the financial statements and notes thereto and other financial and statistical data or past performance information included therein, as to which such counsel need render no opinion), complied as to form in all material respects with the requirements of the 1933 Act, SEC Regulations, the Commodity Act, the CFTC Regulations and the NFA Rules.
(x) Assuming operation in accordance with the Prospectus, the Fund will not be an "investment company" or a company "controlled" by an
Appears in 1 contract
Sources: Selling Agreement (Grant Park Futures Fund Limited Partnership)
Conditions of Closing. 9.1 The purchase Subscriber acknowledges and sale agrees that the Corporation is relying on the truth of the Purchased Securities representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Time as if made at and as of the Closing Time, and the Closing will be conditional upon and subject fulfillment of the following additional conditions prior to the following conditions being fulfilled Closing Time:
(a) at or prior to the Time of Closing, which conditions time and date specified by the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersSubscriber:
(ai) the Corporation will have Subscriber having made or obtained the necessary filings, approvals, consents and acceptances payment of the appropriate Securities Commissions, the Exchange and the NYSE required to be made Subscription Amount in a manner as described below or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation other manner as may be acceptable to provided for by the UnderwritersCorporation. Payment can be made by way of wire transfer in U.S. funds using the following wire transfer instructions: Account No.: Routing No.: Bank Name: Bank Address: Bank SWIFT code:
(ii) addressed to the Underwriters Subscriber having properly completed, signed and dated the Closing Date in form satisfactory to their counseldelivered this Subscription Agreement (including all applicable Schedules attached hereto) to: MedMen Enterprises, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ With a Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇▇▇ LLP 2100 Scotia Plaza ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, certifying that:▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(iii) if the Subscriber is a U.S. Purchaser, the Subscriber having properly completed, signed and delivered Schedule “A”;
(iv) if the Subscriber is not a U.S. Purchaser, the Subscriber having properly completed, signed and delivered Schedule “B”;
(b) the Subscriber having executed and returned to the Corporation, at the Corporation’s request, all other documents as may be required by the Securities Laws or any other laws for delivery by the Corporation on behalf of the Subscriber or otherwise;
(c) the representations and warranties of the Subscriber set forth herein being true and correct as of the Closing Time;
(d) all covenants and agreements contained herein to be performed or complied with by the Subscriber on or prior to the Closing Time having been performed or complied with in all respects by the Subscriber;
(e) the Corporation having obtained all necessary approvals, waivers, acknowledgements and consents in respect of the Offering;
(f) the Corporation having accepted the Subscriber’s subscription, in whole or in part; and
(g) the issue and sale of the Shares being exempt from the requirement to file a prospectus or registration statement under applicable Securities Laws relating to the sale of the Shares, or the Corporation having received such orders, consents or approvals as may be required to permit such sale without the requirement to file a prospectus or registration statement.
Appears in 1 contract
Conditions of Closing. 9.1 (1) The completion of the purchase and sale of the Purchased Securities and 1% Holder Shares in connection with the Closing will be conditional upon and exercise of the 1% Option is subject to the following conditions being to be fulfilled at or prior to performed, on or before the Time of Closing1% Option Closing Date, which conditions are for the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time exclusive benefit of Closing Zijin Purchaser and which conditions in paragraphs (c), (d) and (e) may be waived in writing waived, in whole or in part part, by the UnderwritersZijin Purchaser in its sole discretion:
(a) the Corporation 1% Holder must represent and warrant to Zijin Purchaser that (i) on the 1% Option Closing Date, the 1% Holder Shares are owned by the 1% Holder as the beneficial owner with good title, free and clear of all Liens other than those restrictions contained in the Articles and this Agreement, and (ii) upon completion, Zijin Purchaser will have made or obtained good and valid title to the necessary 1% Holder Shares sold by the 1% Holder, free and clear of all Liens other than (A) those contained in the Articles and this Agreement, and (B) Liens granted by Zijin Purchaser;
(b) all filings, approvals, consents notices and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE Authorizations required to be made or obtained by the Corporation prior to the Time of Closing in order 1% Holder to complete the Offering as herein contemplatedpurchase and sale of the 1% Holder Shares have been made, it being understood that given or obtained;
(c) the Underwriters shall do all that completion of the purchase and sale of the 1% Holder Shares and the payment of the 1% Option Purchase Price will not result in the violation of any Law by the 1% Holder; and
(d) no order or notice will have been made, issued or delivered by any Governmental Entity, seeking to enjoin, restrict or prohibit or enjoining, restricting or prohibiting, on a temporary or permanent basis any of the transactions contemplated by this Article 10 or imposing any temporary or permanent terms or conditions on the transactions contemplated by this Article 10.
(2) The completion of the purchase and sale of the 1% Holder Shares in connection with the exercise of the 1% Option is requiredsubject to the following conditions to be fulfilled or performed, acting reasonablyon or before the 1% Option Closing Date, to assist which conditions are for the Corporation to fulfill this conditionexclusive benefit of the 1% Holder and may be waived, in whole or in part, by the 1% Holder in its sole discretion:
(a) the completion of the purchase and sale of the 1% Holder Shares and the payment of the 1% Option Purchase Price will not result in the violation of any Law;
(b) the directors Transfer of the Corporation shall have authorized and approved this Agreement, the issuance 1% Holder Shares to Zijin Purchaser must be exempt from any prospectus or similar requirements of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;applicable Laws; and
(c) it shall be the case thatall guarantees, indemnities, covenants and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation security made or granted by the Chief Executive Officer 1% Holder to secure any Debt, liability or an executive officer of the Corporation and the Chief Financial Officer obligation of the Corporation (i) must be cancelled; or (ii) Zijin Purchaser must have indemnified the 1% Holder against all Liabilities which may be paid, suffered or incurred with respect to such officers guarantees, indemnities, covenants or security.
(3) If, as a result of a condition expressed in this Section, the purchase and sale of the Corporation as may 1% Holder Shares in connection with the exercise of the 1% Option cannot be acceptable to completed on the Underwriters1% Option Closing Date, the purchase and sale of the 1% Holder Shares shall be completed on the second (2nd) addressed to Business Day following the Underwriters and dated date that the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:condition is subsequently satisfied.
Appears in 1 contract
Sources: Shareholder Agreement
Conditions of Closing. 9.1 The purchase and sale obligations of the Purchased Securities Underwriters and the Closing will Purchasers to complete the purchase of the Units, and, if applicable, the Over-Allotment Units, shall be conditional upon and subject to the following conditions being fulfilled at or prior to fulfilment before the Time of Closing, which conditions Closing of the following conditions:
(1) the Corporation covenants shall have obtained all requisite regulatory approvals required to exercise its reasonable best efforts be obtained by the Corporation in respect of the Offering;
(2) the Corporation shall have fully complied with all relevant statutory and regulatory requirements required to have fulfilled at or be complied with prior to the Time of Closing (including, without limitation, the regulatory requirements of the Exchange) in connection with the Offering;
(3) the Corporation shall have received the conditional acceptance of the Exchange to proceed with the Offering and which conditions to list the Common Shares comprising part of the Units, the Common Shares issuable upon exercise of the Warrants, the Common Shares comprising part of the Over-Allotment Units and the Common Shares issuable upon exercise of the Over-Allotment Warrants, subject to the usual filing requirements of the Exchange;
(4) the Corporation shall have filed a “Current AIF” (the “AIF”) as such term is defined in paragraphs MI 45-102 and shall be a “qualifying issuer” as defined in MI 45-102;
(c)5) the Corporation shall have taken all necessary corporate action to authorize and approve each of the Documents, the issuance of the Common Shares comprising part of the Units, the Common Shares issuable upon exercise of the Warrants and, if applicable, the Common Shares comprising part of the Over-Allotment Units and the Common Shares issuable upon exercise of the Over-Allotment Warrants, and all other matters relating thereto;
(d6) the Underwriters and (e) may be waived in writing in whole the Purchasers shall have received at the Time of Closing a favourable legal opinion of DuMoulin Black, counsel to the Corporation, or in part by local counsel to the Corporation addressed to the Underwriters and the Purchasers, acceptable to counsel to the Underwriters, to the effect that:
(a) the Corporation will have made or obtained is a corporation validly existing under the necessary filingslaws of its jurisdiction of incorporation and is qualified to carry on business under the laws of Ontario, approvalsBritish Columbia and Quebec, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionapplicable;
(b) the Corporation has all requisite corporate capacity, power and authority to conduct the business as now conducted by it and to own its assets;
(c) the authorized capital of the Corporation, consists of 600 million shares divided into 500 million Common Shares and 100 million preferred shares, of which 85,282,862 Common Shares are issued and outstanding as at September 8, 2003;
(d) each of the Documents has been duly authorized and executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable in accordance with its terms (subject to bankruptcy, insolvency or other laws affecting the rights of creditors generally, general equitable principles including the availability of equitable remedies);
(e) all necessary corporate action has been taken by the Corporation to authorize the creation and issue (as applicable) of the Common Shares comprising part of the Units, the Warrants, the Common Shares issuable upon exercise of the Warrants, the Common Shares comprising part of the Over-Allotment Units, the Over-Allotment Warrants and the Common Shares issuable upon exercise of the Over-Allotment Warrants;
(f) the Warrants and, if applicable, the Over-Allotment Warrants, have been created, authorized and issued by the Corporation;
(g) the Common Shares comprising part of the Units and, if applicable, the Over-Allotment Units, have been validly issued as fully-paid and non-assessable Common Shares;
(h) the Common Shares issuable upon the exercise of the Warrants and, if applicable, the Over-Allotment Warrants, have been authorized and reserved for issue to the holders of the Warrants and, if applicable, the Over-Allotment Warrants, and upon the exercise of the Warrants and, if applicable, the Over-Allotment Warrants in accordance with the terms thereof, such Common Shares will be validly issued as fully-paid and non-assessable Common Shares;
(i) the issue and sale of the Units and, if applicable, the Over-Allotment Units, are exempt, either by statute or regulation or order, from the prospectus requirements of the Offering Provinces, subject to the filing of all necessary reports, certificates or undertakings and fees required to be filed under the applicable securities legislation;
(j) the Units, the Common Shares comprising part of the Units, the Common Shares issuable upon exercise of the Warrants and, if applicable, the Over-Allotment Units, the Common Shares comprising part of the Over-Allotment Units and the Common Shares issuable upon exercise of the Over-Allotment Warrants will not be subject to any restricted or statutory hold period under the Securities Legislation, which extends beyond four months and one day after the Closing Date, and thereafter no other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations of regulatory authorities required to be obtained under the laws of any of the Offering Provinces, in connection with the first trade by a holder thereof (subject to the usual qualifications);
(k) the form of share certificate for the Common Shares conforms with all applicable corporate legislation and Exchange requirements and has been approved by the board of directors of the Corporation;
(l) the Common Shares comprising part of the Units, the Common Shares issuable upon exercise of the Warrants and, if applicable, the Common Shares comprising part of the Over-Allotment Units and the Common Shares issuable upon exercise of the Over-Allotment Warrants, have been conditionally approved for listing on the Exchange; and
(m) the Corporation is a reporting issuer not in default under the applicable Securities Legislation, and in giving the opinions contemplated above, counsel to the Corporation shall have authorized be entitled to deliver opinions of local counsel in the Offering Jurisdictions, and approved this Agreementcounsel to the Corporation shall be entitled, as to matters of fact, to rely upon the issuance representations and warranties of the Purchased SecuritiesPurchasers contained in the Subscription Agreements, a certificate of fact of the Corporation signed by officers of the Corporation in positions to have knowledge of such facts and all matters relating theretotheir accuracy, it being hereby represented certificates of such public officials and other persons as are necessary or desirable;
(7) the Underwriters shall have received at the Closing a title opinion, in form and substance satisfactory to the Underwriters’ counsel acting reasonably, addressed to the Underwriters and their counsel in respect of the title of the Corporation in and to the Resource Properties;
(8) the Underwriters and the Purchasers shall have received a certificate of the Corporation, dated the Closing Date, signed by the Chief Executive Officer of the Corporation that or by such authorization other officer or officers of the Corporation acceptable to the Underwriters, certifying that:
(a) the Corporation has complied with all covenants and approval will satisfied all terms and conditions of this Agreement on its part to be obtained prior complied with and satisfied up to the Time of Closing;
(b) all of the representations and warranties contained in this Agreement are true and correct as of the Closing Date with the same force and effect as if made at and as of the Closing Date, after giving effect to the transactions contemplated hereby;
(c) it shall be no order, ruling or determination having the case thateffect of ceasing or suspending trading in any securities of the Corporation (including the currently issued and outstanding Common Shares, the Common Shares comprising part of the Units, the Common Shares issuable upon exercise of the Warrants and, if applicable, the Common Shares comprising part of the Over-Allotment Units and the Common Shares issuable upon exercise of the Over-Allotment Warrants), has been issued and no proceedings for such purposes are pending, or, to the knowledge of such officers, contemplated or threatened;
(d) the execution and delivery (as applicable) of the Documents, the certificates representing each of the Units, the Common Shares comprising part of the Units, the Common Shares issuable upon exercise of the Warrants, the Over-Allotment Units, the Common Shares comprising part of the Over-Allotment Units and the Common Shares issuable upon exercise of the Over-Allotment Warrants and the performance of the transactions contemplated thereby, do not and will not result in a breach of, and do not create a state of facts which, after notice, or lapse of time or both, will result in a breach of, and do not and will not conflict with, any of the terms, conditions or provisions of the Articles or any trust indenture, agreement or instrument to which the Corporation will deliver is contractually bound on the Closing Date; and,
(9) the Corporation has delivered to the Underwriters a certificate of the Corporation Computershare Trust Company of Canada, as registrar and signed on behalf transfer agent of the Corporation by Common Shares, which certifies the Chief Executive Officer or an executive officer number of Common Shares issued and outstanding on the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable date prior to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:Date.
Appears in 1 contract
Conditions of Closing. 9.1 (a) The purchase and sale obligations of the Purchased Securities Placement Agent pursuant to this Agreement shall be subject, in its discretion, to the continuing accuracy of the representations and warranties of the Company contained herein and in each certificate and document contemplated under this Agreement to be delivered to Placement Agent or otherwise at the Closing will be conditional upon (including, without limitation, all Subscription Documents), as of the date hereof and subject as of the Closing Date, to the performance by the Company of its obligations hereunder, and to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(ai) At the Corporation will have made or obtained the necessary filingsClosing, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation Placement Agent shall have authorized and approved this Agreement, received the issuance favorable legal opinion of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, outside legal counsel to the Company, in the form and substance attached hereto as Exhibit A.
(ii) Prior to the Closing, the Placement Agent shall be satisfied with the information presented through its due diligence investigation and analysis of (A) the Company’s arrangements with its officers, directors, employees, affiliates, customers and suppliers, (B) the completed historical financial statements of the Company and (C) the Company’s projected financial results.
(iii) Promptly after the Closing, the Placement Agent shall have received the Shares and Warrants sold to the Investors in the Private Placement, duly executed and made out in the name of such Investors for the number of Shares and Warrants purchased. Acorn Energy October 30, 2014 Page 25 of 31
(iv) At the Closing, Placement Agent shall have received the applicable fees and Placement Agent Warrants payable to Placement Agent as described in Section 3 hereof. The Placement Agent Warrant shall be in the form attached hereto as Exhibit B.
(v) At the Closing, Placement Agent shall have received a certificate of the chief executive officer of the Company, dated, as applicable, as of the date of such Closing, to the effect that, as of the date of this Agreement and as of the applicable date, the representations and warranties of the Company contained herein were and are accurate in all material respects, except for such changes as are contemplated by this Agreement and except as to representations and warranties that were expressly limited to a state of facts existing at a time prior to the Closing Date, and that, as of the applicable date, the obligations to be performed by the Company hereunder on or prior thereto have been fully performed in all material respects.
(vi) At the Closing, Placement Agent shall have received a certificate of the Secretary of the Company, dated, as applicable, as of the date of the Closing, certifying thatto the organizational documents, good standing in its state of incorporation of the Company and each Subsidiary and board resolutions relating to the Private Placement of the Securities from the Company.
(vii) On or prior to the Closing Date, Placement Agent shall have been furnished with: (A) such information, documents and certificates as it may reasonably require for the purpose of enabling it to review the matters referred to in this Section 10 and in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties, covenants, agreements or conditions herein contained, and (B) such other closing documentation as may be reasonably required in order to affect the Closing or as Placement Agent may otherwise reasonably request.
(viii) All proceedings taken in connection with the issuance, sale and delivery of the Securities shall be reasonably satisfactory in form and substance to Placement Agent and its counsel.
(ix) Any certificate or other document signed by any officer of the Company and delivered to Placement Agent and its counsel as required hereunder shall be deemed a representation and warranty by the Company hereunder as to the statements made therein. If any condition to Placement Agent’s obligations hereunder have not been fulfilled as and when required to be so fulfilled, Placement Agent may terminate this Agreement in accordance with Section 5 hereof, including, without limitation, after any applicable cure periods, or, if Placement Agent so elects, in writing waive any such conditions which have not been fulfilled or extended the time for their fulfillment. In the event that Placement Agent elects to terminate this Agreement, Placement Agent shall notify the Company of such election in writing. If, within twelve (12)months after the date on which this Agreement is terminated, the Company completes any private financing of equity, equity-linked or debt(other than bank financing)or other capital raising activity of the Company (other than the exercise by any person or entity of any options, warrants or other convertible securities other than the Warrants issued pursuant to this Agreement) with any of the Investors who were first introduced to the Company in connection with the Private Placement contemplated hereby by the Placement Agent, the Company will pay to the Placement Agent upon the closing of such financing the compensation set forth in Sections 3(b) hereof. Upon such termination, neither party shall have any further liability nor obligation to the other except as provided in this Section 10(a)(ix) and in Sections 4,5 and 11 hereof. Acorn Energy October 30, 2014 Page 26 of 31
(b) The respective obligations of the Company pursuant to this Agreement shall be subject, in its discretion, to the continuing accuracy of the representations and warranties of Placement Agent contained herein and in each certificate and document contemplated under this Agreement to be delivered to the Company or otherwise at the Closing, as of the date hereof and as of the Closing Date, to the performance by Placement Agent of its obligations hereunder, and to the following conditions:
(i) All proceedings taken in connection with the issuance, sale and delivery of the Securities shall be reasonably satisfactory in form and substance to the Company and its counsel.
(ii) On or prior to the Closing Date the Company shall have been furnished with: (A) such information, documents and certificates as it may reasonably require for the purpose of enabling it to review the matters referred to in this Section 10 and in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties, covenants, agreements or conditions herein contained, and (B) such other closing documentation as may be reasonably required in order to effect the Closing or as the Company may otherwise reasonably request.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale obligation of the Purchased Securities and Lenders to make the Closing will initial Loans requested to be conditional upon and made by it is subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersprecedent that:
(a) the Corporation will Agent shall have made or obtained received on the necessary filingsClosing Date, approvals, consents in form and acceptances of substance satisfactory to the appropriate Securities CommissionsAgent, the Exchange and the NYSE required to be made or obtained by the Corporation following:
(i) executed originals of each of this Agreement, any Notes requested prior to the Time of Closing in order to complete Date and the Offering as herein contemplatedother Loan Documents, it being understood that the Underwriters shall do together with all that is required, acting reasonably, to assist the Corporation to fulfill this conditionschedules and exhibits thereto;
(bii) the directors favorable written opinion or opinions with respect to the Loan Documents and the transactions contemplated thereby of (i) Candace S. Cummings, Vice President & General Counsel of the Corporation shall have authorized and approved this AgreementGuara▇▇▇▇, the issuance of the Purchased Securities(▇▇) ▇▇▇▇▇ ▇▇lk & Wardwell, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior special counsel to the Time of ClosingGuarantor, (iii) Loy▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇unsel to VF Investments, (iv) Baker & McKenzie CV▇▇/▇▇▇▇, local counsel to VF Europe, (v) Fairba▇▇▇ ▇atl▇▇ ▇▇▇ & Kong, local counsel to VF Asia and (vi) Bak▇▇ & ▇▇▇▇nzie Zurich, local counsel to VF International, in eac▇ ▇▇▇e, ▇▇▇▇▇ ▇▇e Closing Date, addressed to the Agent and the Lenders and satisfactory to the Agent and to Simpson Thacher & Bartlett LLP, special counsel to the Agent;
(c▇▇▇) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇sol▇▇▇▇▇▇ ▇▇▇▇▇ LLPf the board of directors or other appropriate governing body (or of the appropriate committee thereof) of the Guarantor and of each Borrower certified by such entity's secretary or assistant secretary or any Authorized Representative of such entity as of the Closing Date, approving and adopting the Loan Documents to be executed by the Guarantor and each Borrower, as applicable, and authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Guarantor and each Borrower, certified by the secretary or assistant secretary or any Authorized Representative of the Guarantor and each Borrower, as applicable;
(v) the Organizational Documents of the Guarantor and each Borrower certified as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of its organization or by an Authorized Representative of the Guarantor or such Borrower, as the case may be;
(vi) the by-laws or articles of association of the Guarantor and each Borrower certified as of the Closing Date as true and correct by such entity's secretary or assistant secretary or any Authorized Representative of such entity;
(vii) to the extent applicable and available in the relevant jurisdiction, a certificate issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of the jurisdiction of formation of the Guarantor and each Borrower as to the due existence and good standing of the Guarantor and each Borrower, as applicable;
(viii) notice of appointment of the initial Authorized Representative of the Guarantor and each Borrower;
(ix) a certificate of an Authorized Representative of the Guarantor dated the Closing Date demonstrating compliance with the covenants contained in Sections 8.1, 8.2(i) and 8.3(e) as of the end of the fiscal quarter for which financial statements are publicly available most recently ended prior to the Closing Date, substantially in the form of Exhibit G;
(x) evidence that all fees payable by the Guarantor and the Borrowers on the Closing Date to the Agent and the Lenders have been paid in full;
(xi) a certificate of the Guarantor certifying that:that (A) as of the Closing Date, each of the representations and warranties set forth in Article VI is true and correct, (B) after giving effect to the Closing Date and all Loans to be made on the Closing Date, there will be no Default or Event of Default under this Agreement, and (C) except as disclosed in any reports or financial statements filed with the Securities and Exchange Commission prior to September 13, 2005, as of the Closing Date there shall not have occurred a material adverse change since January 1, 2005 in the business, financial position or results of operations of the Guarantor and its Subsidiaries, taken as a whole; and
(xii) such other documents, instruments, certificates and opinions as the Agent or any Lender may reasonably request on or prior to the Closing Date in connection with the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (V F Corp)
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities and the Closing will be conditional upon and is subject to the satisfaction of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersprecedent:
(a) The Agent shall have received the Corporation will have made or obtained the necessary filingsfollowing, approvals, consents and acceptances each dated as of the appropriate Securities CommissionsClosing Date (unless otherwise specified) and, except for the Exchange Notes, in sufficient copies for each Lender:
(i) A Note for each Lender that is a party hereto as of the Closing Date, in the amount of such Lender's Commitment, each duly completed in accordance with the relevant provisions of Section 2.4 and executed by each Borrower;
(ii) the Subsidiary Guaranty, duly completed and executed by each Subsidiary; and
(iii) the favorable opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Borrowers, and ▇▇▇▇▇▇▇▇ Lawn, Esq., General Counsel and Secretary of each Borrower, in substantially the form of Exhibit F, addressed to the Agent and the NYSE required to be made Lenders and addressing such other matters as the Agent or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;any Lender may reasonably request.
(b) The Agent shall have received a certificate, signed by the directors president, the chief executive officer or the chief financial officer of each of the Corporation shall have authorized Borrowers, in form and approved this Agreementsubstance satisfactory to the Agent, the issuance certifying that (i) all representations and warranties of the Purchased SecuritiesBorrowers contained in this Agreement and the other Credit Documents that are not qualified as to materiality are true and correct in all material respects, and all matters relating theretorepresentations and warranties of the Borrowers contained in this Agreement and the other Credit Documents that are qualified as to materiality are true and correct, it being hereby represented by in each case as of the Corporation that such authorization Closing Date, both immediately before and approval will be obtained prior after giving effect to the Time consummation of Closing;the transactions contemplated hereby, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, no Material Adverse Change has occurred since December 31, 1996, and there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change, and (iv) all conditions to the Closing hereunder set forth in this Section 3.2 have been satisfied or waived as required hereunder.
(c) it The Agent shall be the case that, and the Corporation will deliver to the Underwriters have received a certificate of the Corporation secretary or an assistant secretary of each Borrower Affiliate, in form and signed on behalf substance satisfactory to the Agent, certifying (i) that attached thereto is a true and complete copy of the Corporation articles or certificate of incorporation and all amendments thereto of such Borrower Affiliate, certified as of a recent date by the Chief Executive Officer Secretary of State (or an executive comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws of such Borrower Affiliate as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors of such Borrower Affiliate authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such Borrower Affiliate executing this Agreement or any of such other Credit Documents, and attaching all such copies of the Corporation documents described above.
(d) The Agent shall have received a certificate as of a recent date of the good standing of each Borrower Affiliate under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.
(e) All legal matters, documentation, and corporate or other proceedings incident to the transactions contemplated hereby shall be satisfactory in form and substance to the Agent; all approvals, permits and consents of any Governmental Authorities or other Persons required in connection with the execution and delivery of this Agreement and the Chief Financial Officer other Credit Documents and the consummation of the Corporation (or such officers transactions contemplated hereby and thereby shall have been obtained, without the imposition of the Corporation as may be conditions that are not acceptable to the UnderwritersAgent, and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court, Governmental Authority or other Person (i) addressed against or affecting any Borrower Affiliate or any of their respective properties or (ii) with respect to this Agreement or any of the other Credit Documents.
(f) Since December 31, 1996, both immediately before and after giving effect to the Underwriters consummation of the transactions contemplated by this Agreement, there shall not have occurred any Material Adverse Change or any event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change.
(g) The Borrowers shall have paid all fees and dated expenses of the Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including fees and expenses of counsel) in connection with this Agreement and the transactions contemplated hereby.
(h) The Agent shall have received a Financial Condition Certificate, in form and substance satisfactory to their counsel, the Agent.
(i) The Agent shall have received written confirmation from the applicable lenders under the PNC Indebtedness and the ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPIndebtedness to the effect that (i) all principal, certifying that:interest and other amounts outstanding with respect to the PNC Indebtedness and the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Indebtedness, as the case may be, have been repaid and satisfied in full, (ii) all commitments to extend credit under the agreements and instruments relating thereto have been terminated, (iii) any Liens securing any PNC Indebtedness or any ▇▇▇▇▇▇▇ ▇▇▇▇▇ Indebtedness, as the case may be, have been released and any related filings have been terminated of record (or arrangements satisfactory to the Agent made therefor), and (iv) any letters of credit outstanding with respect to the PNC Indebtedness or the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Indebtedness, as the case may be, have been terminated or cancelled.
(j) The Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer of each Borrower, including wire transfer information, directing the payment of the proceeds of Loans to be made hereunder.
(k) The Agent and each Lender shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested.
(l) The Agent shall have completed its due diligence review of the Borrowers and shall have been satisfied with the results thereof.
Appears in 1 contract
Conditions of Closing. 9.1 11.1 The purchase and sale obligations of the Purchased Securities and Underwriters on the Closing Day will be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing:
(a) on the Corporation Closing Day, the Issuer will have made or obtained delivered to the necessary filingsUnderwriters, approvals, consents their solicitors and acceptances the Substituted Purchasers a favourable opinion of the appropriate Securities CommissionsIssuer’s solicitor dated as of the date of the Closing Day, in a form acceptable to the Underwriters and their solicitors, acting reasonably as to all legal matters reasonably requested by the Underwriters relating to the business of the Issuer and the creation and issuance of the FT Shares or, instead of rendering opinions relating to the laws of the Selling Provinces other than British Columbia, Alberta, Ontario or Quebec, the Exchange and Issuer’s solicitor may engage one or more legal counsel in the NYSE required Selling Provinces or elsewhere to provide such local counsel opinions as may be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionnecessary;
(b) on the directors Closing Day, the Issuer will have delivered to the Underwriters, their solicitors and the Substituted Purchasers such certificates of its officers and other documents relating to the Private Placement or the affairs of the Corporation shall have authorized and approved this Agreement, Issuer as the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingUnderwriters or their solicitors may reasonably request;
(c) it shall the Underwriters are satisfied, in their sole discretion, acting reasonably, with the results of their due diligence review, including, but not limited to, a review of all relevant corporate information and property title;
(d) each representation and warranty of the Issuer which is contained in this Agreement continues to be the case thattrue, and the Corporation will deliver Issuer has performed or complied with all of its covenants, agreements and obligations under this Agreement; and
(e) no Commission has advised the Issuer in writing that its securities are not eligible for the four month hold period provided for in NI 45-102.
11.2 The Closing and the obligations of the Issuer and the Underwriters to complete the issue and sale of the FT Shares are subject to:
(a) receipt of all required regulatory approval for or acceptance of the Private Placement; and
(b) the removal or partial revocation of any cease trading order or trading suspension made by any competent authority to the Underwriters a certificate extent necessary to complete the issuance of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation FT Shares and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:Private Placement.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 9.1 6.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing, except those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed;
(c) the receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Company, and all such approvals being in full force and effect;
(d) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(e) during the Interim Period, there shall have been no Order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
6.2 If any condition in section 6.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors or the Company to be made comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
6.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall do be true and correct in all that is requiredmaterial respects at the Closing, acting reasonably, to assist the Corporation to fulfill this conditionexcept those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the directors all outstanding securities of the Corporation Company convertible into Company Shares shall have authorized been cancelled, including the Vendors Warrants and approved this Agreement, the issuance of the Purchased SecuritiesVendors Options, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Company shall not have any convertible securities outstanding at Closing;
(c) it shall be the case that, covenants and conditions of the Vendors and the Corporation will deliver Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed in all material respects;
(d) the Underwriters a certificate receipt of any Consents necessary for this Agreement and the completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(e) addressed during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(f) the Board of Directors of the Company shall have approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of the Company; and
(g) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
6.4 If any condition in section 6.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Underwriters and dated Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Closing Date Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Purchase Agreement
Conditions of Closing. 9.1 7.1 The purchase and sale obligation of the Purchased Securities and Purchaser to purchase the Closing Debentures contemplated hereby will be conditional upon and subject to the fulfilment on or before Closing of the following conditions being fulfilled at or prior to the Time of Closingterms and conditions, compliance with which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersPurchaser in its discretion and upon such terms as it may consider appropriate:
(a) the Corporation representations and warranties of the Companies contained herein will be true in all material respects at and as of closing as though such representations and warranties were made again at and as of such time and at Closing the Companies will have made delivered to the Purchaser a certificate, in form and substance satisfactory to the Purchaser, reaffirming such representations and warranties;
(b) there has not occurred any adverse material changes in the affairs or obtained the necessary filings, approvals, consents and acceptances prospects of the appropriate Securities CommissionsCompany or its subsidiaries, as determined by the Purchaser;
(c) the average closing price for the common shares of the Company for the ten trading days immediately prior to Closing is not less than 50% of the conversion price of the Debentures during the first year of the term thereof;
(d) the Purchaser’s investment committee shall have approved the Purchase of the Purchaser’s Debentures;
(e) the Companies will have performed and complied with all covenants, agreements and conditions required hereby to be performed or complied with by the Companies prior to Closing;
(f) the Exchange and will have issued its final acceptance of the NYSE required to be made or obtained issuance of the Securities as contemplated by the Corporation prior to terms of this Agreement;
(g) no order (draft or otherwise), judgment, injunction, decree, award or writ of any court, tribunal, arbitrator, government agency or other person will have been entered that prohibits or restricts the Time Closing or which, in the opinion of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is requiredPurchaser, acting reasonably, could prevent or restrict any party hereto from performing any of its obligations hereunder; and
(h) the Purchaser will have received a favourable written opinion of the Company’s counsel dated the date of Closing satisfactory in scope and substance to assist the Corporation Purchaser and its counsel acting reasonably.
7.2 The obligation of the Companies to fulfill complete the subscription contemplated hereby will be subject to the fulfilment on or before Closing of the following terms and conditions, compliance with which may be waived in whole or in part by the Company in its discretion and upon such terms as it may consider appropriate:
(a) the Purchaser or, if applicable, the Disclosed Principal, as the case may be, has delivered to the Companies a fully executed copy of this conditionAgreement, including Schedule “B” and Schedule “C”;
(b) the directors representations and warranties of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval Purchaser contained herein will be obtained prior to the Time true in all material respects on and as of ClosingClosing as though such representations and warranties were made at and as of such time;
(c) the Purchaser will have performed and complied with all covenants, agreements and conditions required hereby to be performed or complied with by it shall be up to and including the case that, and Closing;
(d) the Corporation Exchange will deliver to the Underwriters a certificate have issued its final acceptance of the Corporation and signed on behalf issuance of the Corporation Securities contemplated by the Chief Executive Officer terms of this Agreement; and
(e) no order (draft or an executive officer otherwise), judgment, injunction, decree, award or writ of any court, tribunal, arbitrator, governmental agency or other person will have been entered that prohibits or restricts the Closing or which, in the opinion of the Corporation and the Chief Financial Officer Company, acting reasonably, could prevent or restrict any party hereto from performing any of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:its obligations hereunder.
Appears in 1 contract
Sources: Private Placement Subscription Agreement (Wex Pharmaceuticals Inc.)
Conditions of Closing. 9.1 The Underwriters’ obligation to purchase and sale of the Purchased Securities and any Offered Shares at the Closing will Time shall be conditional upon and subject to the fulfilment at or before the Closing Time of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(a) the Corporation will Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, addressed to the Underwriters, certifying for and on behalf of the Company that:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Final Prospectus (except the Underwriter Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Shares, the Over-Allotment Option and the Broker Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, addressed to the Underwriters, with respect to the notice of articles and articles of the Company, all resolutions of the Company’s board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Underwriters may reasonably request;
(c) the Company shall have made or and/or obtained the all necessary filings, approvals, permits, consents and acceptances authorizations to or from, as the case may be, the board of directors and shareholders of the appropriate Securities CommissionsCompany, the Exchange Securities Regulators, the CSE and the NYSE any other applicable person required to be made or obtained by the Corporation prior to Company in connection with the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved transactions contemplated by this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be terms which are acceptable to the Underwriters, acting reasonably;
(d) the Company shall have made all necessary filings with the CSE for the listing and posting for trading of the Offered Shares and the Broker Warrant Shares on the CSE, other than standard post- closing filings;
(e) the Underwriters shall have received at the Closing Time favourable legal opinions, dated the Closing Date, addressed to the Underwriters and dated the Closing Date in form satisfactory to their counselUnderwriters, from ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company’s Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, with respect to the following matters:
(i) as to the subsistence of the Company under the laws of the Province of British Columbia and as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Shares, grant the Over-Allotment Option and issue the Broker Securities;
(ii) as to the authorized and issued capital of the Company;
(iii) the Company has all requisite corporate power and capacity under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets;
(iv) the execution and delivery of the Transaction Documents, the performance by the Company of its obligations thereunder, the sale and issuance of the Offered Shares, the grant of the Over-Allotment Option and the issuance of the Broker Securities, do not and will not conflict with or result in any breach of the notice of articles and articles of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, or any British Columbia laws;
(v) each of the Transaction Documents have been duly authorized and executed and delivered by the Company, and constitute valid and legally binding obligations of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, liquidation, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and the qualification that the enforceability of rights of indemnity and contribution may be limited by applicable law;
(vi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and the filing thereof with the Securities Regulators, the filing of the Marketing Document with the Securities Regulators and the delivery of each of the preliminary and final U.S. Private Placement Memorandum;
(vii) the Offered Shares, other than the Additional Shares issuable at any Option Closing Time, have been duly and validly issued as fully paid and non-assessable Common Shares in the capital of the Company;
(viii) the Broker Warrants have been duly and validly created and, other than the Broker Warrants issuable at any Option Closing Time, issued;
(ix) the Broker Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Broker Warrants in accordance with the provisions of the Broker Warrant Certificates, the Broker Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares in the capital of the Company;
(x) all necessary corporate action has been taken by the Company to authorize the issuance of the Additional Shares, subject to receipt of payment in full for them, and the issuance of the additional Broker Warrants, and when issued and delivered, the Additional Shares and the additional Broker Warrants will be duly and validly issued by the Company and the Additional Shares will be outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(xi) the rights, privileges, restrictions and conditions attaching to the Offered Shares, the Over- Allotment Option and the Broker Securities conform in all material respects with the description thereof set forth in the Final Prospectus;
(xii) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits, consents and authorizations of the Securities Regulators in each of the Qualifying Jurisdictions have been obtained by the Company to qualify the distribution to the public of the Offered Shares in each of the Qualifying Jurisdictions through persons who are registered under Canadian Securities Laws and to qualify the grant of the Over- Allotment Option and the issuance of the Broker Warrants to the Underwriter;
(xiii) the issuance by the Company of the Broker Warrant Shares upon the due exercise of the Broker Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions in connection therewith;
(xiv) the first trade in, or resale of, the Broker Warrant Shares is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities);
(xv) the Common Shares are listed and posted for trading on the CSE and the Offered Shares and the Broker Warrant Shares shall be listed and posted for trading on the CSE on closing of the Offering;
(xvi) the statements and opinions concerning tax matters set forth in the Final Prospectus under the heading “Eligibility for Investment” insofar as they purport to describe the provisions of the laws referred to therein are fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and limitations set out under such heading; and
(xvii) as to such other matters as the Underwriter’s legal counsel may reasonably request prior to the Closing Time;
(f) the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇▇▇▇ LLP, certifying that:as to: (i) the incorporation and subsistence of each of the Subsidiaries, (ii) the corporate power and capacity of each of the Subsidiaries under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of each of the Subsidiaries and the ownership thereof, in a form satisfactory to the Underwriters and their counsel, acting reasonably;
(g) if any Offered Shares are offered and sold to U.S. Purchasers pursuant to Schedule “A” attached hereto, the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇▇▇▇ LLP, counsel to the Company with respect to United States matters, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and their counsel, acting reasonably, to the effect that no registration of the Offered Shares offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Shares to U.S. Purchasers is made in accordance with Schedule “A” attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Shares;
(h) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, as to title to the mineral concessions comprising the Lemhi Project and the ▇▇▇▇▇▇▇▇ Property;
(i) the Underwriters shall have received from the Company’s Auditors a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(a)(iv);
(j) the Underwriters shall have received executed copies of all of the lock-up agreements requested by the Underwriters pursuant to Section 6(l) in form and substance satisfactory to the Underwriters, acting reasonably;
(k) the Underwriters shall have received certificates of good standing or similar certificates with respect to the jurisdiction in which the Company and the Subsidiaries are existing;
(l) the Underwriters shall have received a certificate from the transfer agent and registrar of the Company as to the issued and outstanding Common Shares as at the close of business on the Business Day prior to the Closing Date; and
(m) the Underwriters shall have received such other documents as the Underwriters or their counsel may reasonably request prior to the Closing Time.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 9.1 The Unless waived in writing by Purchaser, the obligation of Purchaser to purchase the Shares is subject to the satisfaction in all material respects, on or before the Closing, of the following conditions and of any other conditions otherwise enumerated in this Agreement:
(a) Seller’s representations and warranties in Section 4 above are accurate in all material respects;
(b) Seller shall have performed in all material respects all obligations and complied in all material respects with all covenants required to be performed or to be complied with by them under this Agreement;
(c) Purchaser shall have been registered with the SEC and made all appropriate filings necessary to own a majority shareholding interest in the Company;
(d) Neither the Company nor the SEC shall have delivered any notice or expressed any other objection to the purchase and sale of the Purchased Securities and the Closing will be conditional upon and subject to the following conditions being fulfilled at Shares or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and any other matter contemplated by this Agreement;
(e) may be waived in writing in whole or in part by Purchaser shall have transferred the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required Purchase Price to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionSeller;
(bf) Seller shall have notified the directors Company and its transfer agents of the Corporation shall have authorized sale and approved this Agreement, the issuance purchase of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingShares;
(cg) it Purchaser and Seller will have cooperated and collaborated in the preparation of a press release and public statement regarding this Agreement; and
(h) Seller shall (i) immediately notify Purchaser of any event, action, omission or other occurrence, whether intentional or unintentional, taken or omitted to be taken by any person the case consequence of which is that, and or with notice or lapse of time or both the Corporation will deliver to the Underwriters a certificate consequence of which would be that, any of the Corporation representations or warranties of Seller contained in Section 4 is or was materially incorrect, incomplete, insufficient, improper or would otherwise require revisions based upon such event, action, omission or other occurrence; (ii) promptly notify Purchaser of any discovered after the date of this Agreement through the Closing of any event, action, omission, occurrence or situation which Seller has stated, in the representations and signed on behalf warranties contained in Section 4, it has no knowledge of as of the Corporation by the Chief Executive Officer or an executive officer date of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:this Agreement.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale obligations of the Purchased Securities and Purchasers to consummate the transactions contemplated by this Agreement shall be conditioned upon the fulfilment or waiver by each Purchaser at or before the Closing will be conditional upon and subject to Time of the following conditions being fulfilled at or prior to the Time of Closingconditions, which conditions the Corporation Company covenants to exercise use its reasonable best efforts to have fulfil or cause to be fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersTime:
(a) the Corporation will have made or obtained execution and delivery of this Agreement, the necessary filings, approvals, consents and acceptances due authorization of the appropriate Securities Commissions, issuance of the Exchange and the NYSE required to be made or obtained Common Shares shall have been duly authorized by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionnecessary corporate action;
(b) the directors conditional approval of the Corporation Stock Exchanges to list the Common Shares shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingbeen obtained;
(c) it the Purchasers shall be the case that, and the Corporation will deliver have received certificates addressed to the Underwriters a certificate Purchasers, dated as of the Corporation and date of Closing, signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (Company, or such other officer or officers of the Corporation Company as the Purchasers may be acceptable accept, certifying on behalf of the Company to the Underwriterseffect that, except as has been generally disclosed at the date thereof:
(i) addressed no order, ruling or determination suspending or cease trading the Common Shares has been issued, and no proceedings for that purpose have been instituted or, to the Underwriters knowledge of such officer, contemplated or threatened by any securities commission;
(ii) other than as disclosed in the Disclosure Documents, since December 31, 2010, there has not been any change as it relates to the Company and dated its Subsidiaries on a consolidated basis that has or could reasonably be expended to result in a Company Material Adverse Effect;
(iii) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Date Time with the same force and effect as if made at and as of the Closing Time;
(iv) the Company has complied in form satisfactory all material respects with all the terms and conditions of this Agreement on its part to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:be complied with at or before the Closing Time; and
(v) as to such other matters of a factual nature as are appropriate and usual in the circumstances and as the Purchasers or the Purchasers’ counsel may reasonably request; and
(d) the Company shall have delivered to each Purchaser’s custodian of securities identified in Section 10 below the certificates representing the Common Shares.
Appears in 1 contract
Sources: Securities Purchase Agreement (Kennedy-Wilson Holdings, Inc.)
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities and the Closing will be conditional upon and Assets is subject to the following usual conditions being fulfilled at or prior to of closing in an asset purchase transaction, all of which will be included in the Time of ClosingPurchase Agreement and including, which conditions without limitation, the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing:
(a) all of the Corporation covenants of the parties will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionbeen performed;
(b) the directors all of the Corporation shall have authorized representations and approved this Agreement, the issuance warranties of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval parties will be obtained prior to true and correct at the Time of Closingtime they were given and as at the Closing Date;
(c) it shall the Purchaser will be the case that, and the Corporation will deliver satisfied in its sole discretion as to the Underwriters a certificate results of its due diligence investigation with respect to the Purchased Assets;
(d) the Purchaser will be satisfied that it is obtaining title to the Purchased Assets free and clear of all liens, mortgages, charges, security interests, pledges, encumbrances, restrictions, claims and demands whatsoever, except for any permitted encumbrances to be set out in the Purchase Agreement;
(e) all consents and approvals to the sale and purchase of the Corporation and signed on behalf Purchased Assets, as reasonably determined by the parties, will have been obtained;
(f) except as disclosed by either party, no action or proceeding will be pending or threatened to enjoin, restrict or affect the purchase of the Corporation Purchased Assets;
(g) no substantial damage or material adverse change to Purchased Assets will have occurred from the date of the Purchase Agreement to the Closing Date;
(h) the Vendor will have complied with any applicable bulk legislation in respect of the sale of the Purchased Assets to the Purchaser;
(i) any and all regulatory approvals have been obtained and including, without limitation, the approval of NYSE Amex for the issuance of the Shares by the Chief Executive Officer or an executive officer Purchaser to the Vendor;
(j) the transaction shall have been approved by the vote of two-thirds of the Corporation and Vendor's shareholders;
(k) the Chief Financial Officer Purchaser shall simultaneously close its acquisition of the Corporation (or such officers of remaining 99% interest in the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:STMV; and
Appears in 1 contract
Conditions of Closing. 9.1 (a) The purchase Subscriber acknowledges and agrees that, as the sale of the Purchased Securities Units will not be qualified by a prospectus, such sale and the Closing will be conditional upon and issuance is subject to the following conditions being fulfilled at or prior condition that the Subscriber (or, if applicable, any others for whom it is contracting hereunder) returns to the Time of Closing, which conditions Corporation all documentation required by the Securities Laws. The Subscriber acknowledges and agrees that the Corporation covenants may provide the Securities Regulators with a list setting forth the identities of the beneficial purchasers under the Offering together with other personal information, as described in section 8.1. Notwithstanding that the Subscriber may be purchasing the Subscribed Units as agent on behalf of an undisclosed principal, the Subscriber agrees to exercise its reasonable best efforts to have fulfilled at or prior provide, on request, particulars as to the Time identity of Closing and which conditions in paragraphs (c), (d) and (e) such undisclosed principal as may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete comply with the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;foregoing.
(b) The Subscriber acknowledges and agrees that the directors obligations of the Corporation shall have authorized hereunder are conditional on the accuracy of the representations and approved warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, the issuance and as of the Purchased Securities, Closing Time as if made at and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate as of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be Closing Time, and, unless other arrangements acceptable to the Underwriters) addressed Corporation have been made, payment by the Subscriber of the Subscription Amount by certified cheque or bank draft payable to the Underwriters and dated the Closing Date in form satisfactory to their counsel, Stikeman ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLPLLP in Trust (“SKSP”) at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, certifying that:▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or by wire transfer, as detailed below, as soon as possible and in any event not later than the Business Day first preceding the Closing Date or at the Closing.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale in Favour of the Purchased Securities and the Closing will be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:DMSL
(a) at the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances Closing Time:
(i) each of the appropriate Securities Commissions, the Exchange representations and warranties of Purchaser and MLA contained in this Agreement and the NYSE required Closing Documents shall be true, complete and accurate in all material respects as and when made and at and as of the Closing Time as though such representations and warranties were made at and as of the Closing Time;
(ii) all obligations, agreements and covenants of the Purchaser and MLA to be made or obtained by the Corporation completed prior to the Closing Time shall have been performed or completed by the Purchaser and MLA; and
(iii) there shall not be pending any Legal Proceeding against any of the Vendors, the Purchaser or MLA brought by any Governmental Authority or any other Person that seeks to restrain, materially modify or invalidate the transactions contemplated by this Agreement and no Order that would prohibit, materially modify or restrain such transactions shall be in effect;
(iv) the Purchaser and MLA shall have delivered to the Vendors a certificate dated as of the Closing Date signed by an officer of each of the Purchaser and MLA in order respect of the matters set out in this Subsection 5.2(a) other than in respect of Clause 5.2(a)(iii) as it relates to complete any of the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionVendors;
(b) the directors of the Corporation MLA shall have authorized and approved this Agreement, completed the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingMLA Financing;
(c) it DMSL shall have received the Closing Documents required to be delivered by the Purchaser and MLA to DMSL pursuant to Section 7.3 in form and substance satisfactory to DMSL and its counsel, acting reasonably;
(d) no order ceasing or suspending trading in any Equity Securities of MLA shall have been issued by any Governmental Authority and no proceedings for such purpose should be, to the knowledge of MLA, pending or threatened;
(e) the Vendors shall have been provided with evidence of TSXV approval (or conditional approval) of the completion of the Transactions, including issuance of the Payment Shares and the Conversion Shares, and of TSXV and TSX approval of listing and posting for trading on the TSXV and TSX, as applicable, of such shares, subject only to satisfaction by MLA of customary post-closing conditions imposed by the TSXV or the TSX, as applicable, in similar circumstances;
(f) the prospectus relating to the MLA Financing shall have qualified for distribution the Payment Shares;
(g) all Vendor Consents listed in Part B of Schedule 3.1(n) other than those consents which the Parties have agreed are to be received post closing, shall have been obtained, made or waived, provided however, that this condition precedent shall be deemed to be satisfied in respect of the case that, Vendor Consents which are noted in part B of Schedule 3.1(n) as being subject to Section 6.10 if DMSL and the Corporation will deliver Purchaser have satisfied their obligations under Section 6.10 and Purchaser Consents including the approval of the Mexican Federal Competition (Anti-Trust) Commission, other than those consents which the Parties have agreed are to be received post closing, shall have been obtained, made or waived;
(h) the closing of the transaction which is the subject of the STB Share Purchase Agreement shall have been completed in escrow with the only condition precedent remaining to be satisfied be the Closing;
(i) all conditions to closing under the Consent Agreement and STB Share Purchase Agreement shall have been satisfied or waived by the party entitled to the Underwriters a certificate benefit thereto;
(j) if the VAT is payable on Closing, the Purchaser shall have arranged for loan proceeds in the amount of the Corporation and signed on behalf VAT payable and, if payment of the Corporation VAT may be deferred to a date following the Closing Date, the Purchaser shall have entered into loan arrangements which shall be sufficient to satisfy the VAT obligations satisfactory to the Purchaser and the Vendors for the advancement of such proceeds;
(k) all documents and agreements to be delivered and executed pursuant to the Consent Agreement shall have been delivered in escrow subject only to the release from escrow of the proceeds of the MLA Financing, the completion of the Closing and the closing under the STB Share Purchase Agreement; and
(l) the Purchaser shall have obtained such explosive permits as are necessary to enable the Purchaser to carry on the Business substantially in the manner conducted by the Chief Executive Officer or an executive officer of Vendors in the Corporation and the Chief Financial Officer of the Corporation eighteen (or such officers of the Corporation as may be acceptable 18) month period prior to the Underwriters) addressed to the Underwriters and dated the Closing Date or shall have entered into such other arrangements as shall enable it to carry on the activities contemplated by such explosive permits in form accordance with Applicable Laws, as are satisfactory to their counselDMSL and the Purchaser, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:acting reasonably.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale Notwithstanding anything in this Agreement to the contrary, the obligation of the Purchased Securities and Purchaser to complete the Closing purchase of the Shares pursuant to Section 1 herein will be conditional upon and subject to the following conditions being fulfilled satisfaction at or prior to the Time Closing of Closing, which each of the following conditions (the Corporation covenants to exercise its reasonable best efforts to “Purchaser Closing Conditions”):
8.01 The Purchaser will have fulfilled at or prior received the following legal opinions that are in a form satisfactory to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersPurchaser:
(a) That the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇ ▇. ▇▇▇▇▇▇ was properly elected sole director of the Company at the shareholder meeting held on November 16, 2005, held pursuant to that Order of Default Judgment issued on November 2, 2005 in the action styled Sterling Investment Services and ▇▇▇▇ ▇. ▇▇▇▇▇▇ LLPv. Themescapes, Inc., Civil Action No. 1581-N;
(b) That the holding company reorganization (the “Reorganization”) among the Company, Themescapes, Inc., a Delaware corporation (the “Themescapes”), and Bulldog Merger, Inc., a Delaware corporation (“Bulldog”), effected in April 2006 complied with Section 251(g) of the Delaware General Corporation Law;
(c) That the issuance of shares of common stock in the Company to shareholders of Themescapes pursuant to the Reorganization was exempt from registration under Section 5 of the Securities Act of 1933, as amended (the “Securities Act”);
(d) That neither the Shareholder Meeting nor the Reorganization triggered dissenters' rights of appraisal under Delaware law; and
(e) That the Shares being acquired by the Purchaser hereunder were lawfully issued, fully paid and are non-assessable.
8.02 The Purchaser shall have been provided with the following documents or agreements:
(a) A certificate from ▇▇▇▇ ▇. ▇▇▇▇▇▇ certifying that:that the representations and warranties of the Selling Parties contained in this Agreement are true, complete and accurate in all material respects as of the date when made and as of the Closing, as though such representations and warranties were made at and as of such time, except for changes permitted or contemplated in this Agreement, and except insofar as the representations and warranties relate expressly and solely to a particular date or period, in which case they will be true and correct at the Closing with respect to such date or period.
(b) All corporate minutes, books, documents and instruments of every type or nature whatsoever of the Company from inception to the date of Closing, including all documents or instruments upon which an legal opinion rendered in accordance with Section 8.02 hereof is based;
(c) Signed customary management representation letters and attorney letters addressed to the Company’s accountants and auditors that would be required by either to prepare or review the Company’s financial statements for the nine months ended September 30, 2006.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale obligation of the Purchased Investors to complete the purchase of the Securities and at the Closing will be conditional upon and is subject to fulfillment of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(a) the Corporation will have made or obtained Company and the necessary filingsInvestors shall execute and deliver an Investor Rights Agreement, approvalsdated the Closing Date, consents in the form attached as Exhibit 2 with respect to the Purchased Shares and acceptances of the appropriate Securities CommissionsUnderlying Shares (the “Investor Rights Agreement” and with the Agreement and the Warrants, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition“Transaction Documents”);
(b) the directors of the Corporation Company shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior deliver to the Time Investors an Opinion of ClosingCounsel, dated the Closing Date and reasonably satisfactory to counsel for the Investors, with respect to the matters set forth on Exhibit 4;
(c) it the representation and warranties of the Company set forth in this Agreement shall be true and correct as of the case thatdate of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, and the Corporation will deliver Company shall have performed in all material respects all covenants and other obligations required to be performed by it under this Agreement at or prior to the Underwriters Closing Date, and the Investors shall have received a certificate of the Corporation and signed on behalf of the Corporation Company by the Chief Executive Officer or an executive officer President and Secretary of the Corporation Company, in such capacities, to such effect (the “Closing Certificate”);
(d) the Company shall have executed and delivered all other documents reasonably requested by counsel for the Chief Financial Officer Investors that are necessary to complete the contemplated transactions;
(e) All Securities delivered at the Closing shall have all necessary stock transfer tax stamps (purchased at the expense of the Corporation Company) affixed; and
(or such officers f) the Company shall pay the Legal Fee as set forth in Section 6.9 hereof.
(g) the Company shall deliver to Investors a certified copy of its Certificate of Incorporation and by-laws and a Certificate of Good Standing from the Secretary of State of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:State of Delaware.
Appears in 1 contract
Sources: Unit Subscription Agreement (Lightpath Technologies Inc)
Conditions of Closing. 9.1 The purchase and sale obligation of the Purchased Securities and Underwriters to purchase the Initial Units at the Closing will Time on the Closing Date and to purchase any Additional Units at the Closing Time on an Option Closing Date shall be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing:
(a) the Corporation will Underwriters shall have made received a certificate of status (or obtained the necessary filings, approvals, consents and acceptances of equivalent thereof pursuant to the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation relevant governing legislation) dated within one business day prior to the Time of Closing in order to complete Date from the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionCompany and MMDC;
(b) the directors Underwriters shall have received a certificate from the Company, dated as of the Corporation shall have authorized Closing Date and approved addressed to the Underwriters, signed by an officer of such person with respect to the Constating Documents of the Company, all resolutions of the Company’s board of directors relating to the Offering Documents, this Agreement, the issuance of Warrant Indenture and the Purchased Securitiescertificates representing the Compensation Options, and all the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters relating thereto, it being hereby represented by as the Corporation that such authorization and approval will be obtained prior to the Time of ClosingUnderwriters may reasonably request;
(c) it the Underwriters shall be have received a certificate from the case thatCompany, dated as of the Closing Date and the Corporation will deliver addressed to the Underwriters a certificate of the Corporation and Underwriters, signed on behalf of the Corporation by the Co-Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation Company, certifying for and on behalf of the Company, to the best of their knowledge, information and belief, that, as at the Closing Time:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in the Offered Units or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any regulatory authority;
(ii) since April 17, 2018, (A) there has been no adverse change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and the Subsidiaries (taken as a whole); and (B) other than as disclosed in the Offering Documents, no transaction has been entered into by the Company or any Subsidiary which is or would be material to such person other than in the ordinary course of business;
(iii) the Company has complied with all the material terms, and fulfilled the covenants and conditions of this Agreement on its part to be complied with up to the Closing Time;
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement; and
(v) the Final Receipt has been issued by the OSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or other securities of the Company, or the Shares and Warrants to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(d) the Underwriters shall have received satisfactory evidence that all requisite regulatory approvals and consents have been obtained by the Company in order to complete the Offering; and (ii) all necessary forms have been filed with the CSE to effect the listing of the Shares, the Warrants and the Compensation Shares issued upon the exercise of the Compensation Options, on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(e) the Underwriters shall have received a legal opinion addressed to the Underwriters, in the form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from Canadian legal counsel for the Company, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of the Corporation Company, as appropriate and subject to confirmation by the Underwriters, with respect to the following matters:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the federal laws of Canada, and has all requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the authorized and issued capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Shares, the Warrants and the Warrant Shares are accurately summarized in all material respects in the Prospectus;
(v) the Initial Shares and Initial Warrants sold pursuant to the Offering have been duly and validly created and authorized and are issued and are outstanding as fully paid shares or securities (as the case may be) of the Company and, in the case of the Initial Shares, are non-assessable;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares and the Additional Warrants will be duly and validly created, authorized, issued and outstanding as fully paid shares or securities (as the case may be) and, in the case of the Additional Shares, are non- assessable;
(vii) the Warrant Shares have been duly and validly allotted and reserved for issuance and upon the exercise of the Warrants in accordance with their terms, the Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(viii) the Compensation Options have been duly created, authorized and issued by the Company;
(ix) the Compensation Shares issuable upon the exercise of the Compensation Options have been validly reserved for issuance by the Company and, upon the payment of the exercise price therefor and the issue thereof, the Compensation Shares will be validly issued as fully paid and non-assessable Common Shares
(x) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement, the Warrant Indenture and to issue the certificates representing the Compensation Options, and to perform its obligations hereunder and thereunder; (ii) to offer, issue, sell and deliver the Initial Shares and the Initial Warrants comprising the Initial Units; (iii) to grant the Over-Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants comprising the Additional Units issuable upon exercise of the Over- Allotment Option; (iv) to issue, sell and deliver the Warrant Shares upon the exercise of the Warrants; and (v) to issue and grant the Compensation Options and to issue the Compensation Shares upon the exercise of the Compensation Options;
(xi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over-Allotment Option, the issue of the Compensation Options and the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and each of this Agreement and the Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to appropriate qualifications that are customary of an offering of this nature;
(xiii) the execution and delivery of this Agreement and the Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over- Allotment Option, the issuance and grant of the Compensation Options and the issuance of the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the transactions contemplated by this Agreement and the Warrant Indenture, do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the articles of incorporation or amalgamation, as applicable, of the Company, or (ii) the laws of the Province of Ontario and the federal laws of Canada applicable therein;
(xiv) the form and terms of the definitive certificate representing the Common Shares and the Warrants have been approved by the directors of the Company and comply in all material respects with the CBCA, the articles and by-laws of the Company and the rules of the CSE;
(xv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Common Shares and as Warrant agent, registrar and transfer agent for the Warrants;
(xvi) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Initial Shares and the Initial Warrants comprising the Initial Units, the Compensation Options and the Compensation Shares upon the exercise of the Compensation Options, the Over-Allotment Option and the Additional Shares and the Additional Warrants comprising the Additional Units in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xvii) the issuance by the Company of the Warrant Shares in accordance with and pursuant to the terms and conditions of the Warrants and the Warrant Indenture is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit or consent of the Securities Commissions is required to be obtained by the Company under the Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance of the Warrant Shares;
(xviii) the first trade in Warrant Shares underlying the Warrants is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit, consent or authorization of regulatory authorities is required to be obtained by the Company under Applicable Securities Laws of the Qualifying Jurisdictions to permit such trade through registrants registered under Applicable Securities Laws who have complied with such laws and the terms and conditions of their registration, provided that (i) such trade is not a “control distribution” as that term is defined in National Instrument 45-102 – Resale of Securities at the time of such trade, (ii) the Company is a reporting issuer (as defined under Applicable Securities Laws) at the time of such first trade, and (iii) such first trade is not a transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to a distribution;
(xix) subject only to the Standard Listing Conditions, the Shares, the Warrants and the Compensation Shares issued upon the exercise of the Compensation Options, have been approved for listing on the CSE;
(xx) the execution and form of the certificates representing the Warrants and Compensation Options have been approved by the Company and comply with the requirements of the Canada Business Corporations Act;
(xxi) the summary under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus is a fair and adequate summary of the principal Canadian federal income tax considerations generally applicable to the acquisition, holding and disposition of the Shares, Warrants and Warrant Shares, subject to the qualifications, assumptions, limitations and understandings set out in such summary; and
(xxii) confirming the statements under the heading “Eligibility for Investment” in the Prospectus, subject to the qualifications, assumptions and limitations set out under such heading. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Offered Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances but only as to matters of fact, on certificates of officers of the Company and others;
(f) the Underwriters shall have received a legal opinion from legal counsel to, and duly qualified to practice law in the jurisdiction of existence of MMDC addressed to the Underwriters and legal counsel to the Underwriters with respect to: (i) the existence of MMDC; (ii) the issued and outstanding securities of MMDC and the securities thereof held by the Company; (iii) the corporate power and capacity to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable to the Underwriters and their legal counsel, acting reasonably;
(g) the Underwriters shall have received a regulatory opinion from the Company’s regulatory counsel that the Company and MMDC is in compliance with applicable State cannabis laws addressed to the Underwriters, such opinion to be in form and substance, acceptable to the Underwriters and their legal counsel, acting reasonably;
(h) if any Initial Units or Additional Units are sold to purchasers in the United States, the Underwriters will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States securities counsel to the Company, to the effect that no registration of the Initial Units and Additional Units offered and sold to purchasers in the United States will be required under the U.S. Securities Act, such opinion to be in form and substance, acceptable to the Underwriters;
(i) the Company shall cause its auditors to deliver to the Underwriters a “bring down” comfort letter, addressed to the Underwriters and the board of directors of the Company, dated the Closing Date, in form and substance satisfactory to their counselthe Underwriters, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPacting reasonably, certifying that:bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letters referred to in Section 5(a)(iii) hereof;
(j) the Underwriters shall have received sati
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 9.1 The purchase and sale Crosshair shall not be obligated to complete the Acquisition pursuant to this Agreement unless, at or before the Closing, each of the Purchased Securities and conditions listed below in this section 9.1 have been satisfied, it being understood that the Closing will be conditional upon and subject to said conditions are for the following conditions being fulfilled at or prior to the Time exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersCrosshair:
(a) the Corporation will representations of UUL in this Agreement shall be true and correct in all material respects at the Closing;
(b) UUL shall have performed and complied in all material respects with the terms and conditions of this Agreement on its part to be performed or complied with at or before Closing and shall have executed or delivered to Crosshair at the 50612059.9 Closing all of the documents contemplated in section 8.2 and elsewhere in this agreement;
(c) Crosshair’s due diligence review of UUL and the Claims does not demonstrate the existence of an material undisclosed fact regarding UUL or the Claims or the material inaccuracy of a representation or warranty of UUL as set out in section 2;
(d) during the Interim Period, there shall have been no Material Adverse Change with respect to the Claims or UUL;
(e) during the Interim Period, there shall have been no Order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of enjoining, preventing or restraining the completion of the appropriate Securities Commissions, the Exchange transactions contemplated by this Agreement; and
(f) all regulatory approvals and the NYSE required to be made or obtained by the Corporation prior consents to the Time transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the approval of any stock exchange that the securities of the Parties are listed on.
9.2 If any condition in section 9.1 has not been fulfilled at or before Closing or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of Crosshair to comply with its obligations under this Agreement, then Crosshair may in order its sole discretion, without limiting the rights or remedies available to Crosshair at law or in equity, either:
(a) terminate this Agreement by notice to UUL; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other condition.
9.3 UUL shall not be obligated to complete the Offering as herein contemplatedtransactions contemplated by this Agreement unless, at or before Closing, each of the conditions listed below in this section 9.3 has been satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of UUL:
(a) the representations of Crosshair in this Agreement shall do be true and correct in all that is required, acting reasonably, to assist material respects at the Corporation to fulfill this conditionClosing;
(b) Crosshair shall have performed and complied in all material respects with the directors terms and conditions of this Agreement on its part to be performed or complied with at or before Closing and shall have executed or delivered to UUL at the Closing all of the Corporation shall have authorized documents contemplated in section 8.3 and approved elsewhere in this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingagreement;
(c) it shall be UUL’s due diligence review of Crosshair does not demonstrate the case that, existence of a material undisclosed fact regarding Crosshair or the material inaccuracy of a representation and the Corporation will deliver to the Underwriters a certificate warranty of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation Crosshair as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date set out in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:section 2;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Crosshair Exploration & Mining Corp)
Conditions of Closing. 9.1 The purchase and sale of US Agent's obligation to complete the Purchased Securities Closing, and the Closing will Purchasers' obligations to purchase the Units at the Closing, shall be conditional upon and subject to the following conditions being fulfilled US Agent having received at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filingsfavourable legal opinions, approvals, consents in form and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior substance satisfactory to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is requiredUS Agent, acting reasonably, dated the Closing Date from counsel for the Corporation, Sonfield & Sonfield, or, in the case of laws other than those of the United States, from local counsel addressed to assist the US Agent and the Purchasers and to the extent appropriate as to matters of fact based on certificates of officers of the Corporation to fulfill this conditionthe following effect:
(i) the Corporation has been incorporated and is existing under the laws of the State of Delaware;
(ii) the Corporation has all necessary corporate power and authority to own, lease and operate its business and assets and to conduct its business as now conducted;
(iii) the authorized capital of the Corporation consists of 75,000,001 shares, divided into (i) 50,000,000 shares of Common Stock, $0.001 par value, (ii) 25,000,000 shares of Preferred Stock, $0.001 par value, and (iii) one share of Special Voting Stock.
(iv) the Corporation has all necessary corporate power, capacity and authority to authorize, execute and deliver the Material Contracts and to perform all of its obligations thereunder;
(v) the execution, delivery of and performance by the Corporation of the Material Contracts have been authorized by all necessary corporate action on the part of the Corporation;
(vi) each of the Material Contracts has been duly executed and delivered by the Corporation and, subject to the usual qualifications, constitutes a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with its terms;
(vii) the Units have been authorized, executed and issued by the Corporation and certified and delivered in accordance with the provisions of the Subscription Agreement, subject to the usual qualifications, constitute legal, valid and binding obligations of the Corporation enforceable in accordance with their terms;
(viii) the Common Stock included in the Units, and the Common Stock issuable upon the exercise of the Warrants have been reserved for issuance to the holders, from time to time, of the Warrants and such shares and the Warrants will, when issued, be validly issued and, in the case of the shares, as fully paid and non-assessable Common Stock;
(ix) the authorization, execution and delivery of and performance by the Corporation of the Material Contracts and the performance by the Corporation of its obligations contemplated thereunder, do not and will not conflict with, and do not and will not result in a breach of (whether after notice or lapse of time, or both), any of the terms, conditions or provisions of the articles or by-laws of the Corporation or resolutions of the directors (or any committee thereof) or shareholders of the Corporation;
(x) the Corporation is a reporting company under the Securities Exchange Act of 1934 and not in default under the applicable federal and state laws;
(xi) the form and terms of the certificates representing the Common Stock and Warrants has been or will be duly approved by the directors of the Corporation, and in the case of the Common Stock, conforms with all legal requirements relating thereto; and
(xii) Montreal Trust Company of Canada, at its principal office in Toronto, Ontario, has been appointed as warrant agent for the Share Purchase Warrants under the Share Purchase Warrant Indenture;
(b) certificates dated the Closing Date, signed by appropriate officers of the Corporation, addressed to the US Agent, its counsel, and the Purchasers, with respect to the articles and by-laws of the Corporation, all resolutions of the directors of the Corporation shall have authorized and approved other corporate action relating to this AgreementAgreement and to the creation, the issuance allotment, issue and sale of the Purchased Securities, Units and all specimen signatures of signing officers and with respect to such other matters relating thereto, it being hereby represented as the US Agent may reasonably request;
(c) a certificate or certificates dated the Closing Date and executed on behalf of the Corporation by the President and Chief Executive Officer of the Corporation or such other officer of the Corporation as the US Agent may approve, addressed to the US Agent, its counsel and the Purchasers certifying, to the best of the information, knowledge and belief of the person so signing, after having made due enquiry, that:
(i) there are no contingent liabilities affecting the Corporation which are material to the Corporation;
(ii) no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Common Stock or any other securities of the Corporation has been issued or made by any stock exchange, securities commission or other regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or contemplated or threatened by any stock exchange, securities commission or other regulatory authority;
(iii) there are no actions, suits, proceedings or enquiries pending or threatened against or affecting the Corporation or to which any property of the Corporation is subject, at law or in equity, or before or by any federal, provincial, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may, in any way, materially and adversely affect the Corporation;
(iv) no failure or default on the part of the Corporation exists under any law or regulation applicable to the Corporation or under any licence, permit, contract, agreement or other instrument to which the Corporation is a party or by which the Corporation is bound, which may in any way materially and adversely affect the Corporation and the execution, delivery and performance of this Agreement and the allotment, issue and sale of the Units will not result in any such authorization default;
(v) the Corporation has duly complied in all material respects with all of the terms and approval will conditions of this Agreement on its part to be obtained prior complied with up to the Time of Closing;
(cvi) it shall be the case that, representations and the Corporation will deliver to the Underwriters a certificate warranties of the Corporation contained in this Agreement are true and signed on behalf correct as of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory with the same force and effect as if made at and as of the Time of Closing after giving effect to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the transactions contemplated by this Agreement; and
(vii) such other matters as the US Agent may reasonably request; and
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale obligations of the Purchased Securities and the Closing will each party hereunder shall be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersto:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances The accuracy in all material respects of the appropriate Securities Commissionsrepresentations and warranties of the other party hereto as of the date hereof and as of the Closing Date, as if such representations and warranties had been made again on and as of the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionDate;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and The performance in all matters relating thereto, it being hereby represented material respects by the Corporation that such authorization and approval will other party of its obligations hereunder which must be obtained performed prior to the Time of ClosingClosing Date;
(c) it The Company shall have amended its bylaws to provide that effective on the Closing Date, the Company, without the approval of the owners of a majority of the Common Stock, shall not grant any stock options at less than the closing market price on the date of grant or reduce the price of any options which either were granted as a non-qualified stock option grant to an incoming employee or vendor or were granted under any of the Company's existing or future stock option plans, provided, however, that the foregoing shall not preclude the Company from issuing new, lower priced options issued from a stock option plan to persons holding higher priced options from such plan or any other plan, provided, however, that if such new lower priced options are granted in exchange for such higher priced options, the shares covered by such higher priced options shall be canceled or surrendered and not available for re-grant under such stock option plan.
(d) The Registration Statement has been declared effective and no stop order suspending the case that, and the Corporation will deliver to the Underwriters a certificate effectiveness of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation Registration Statement shall have been issued; (or such officers of the Corporation as may be acceptable e) The stockholder approval referred to the Underwritersin paragraph 4(b) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:above shall have been obtained;
Appears in 1 contract
Conditions of Closing. 9.1 5.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities and Shares pursuant to this Agreement unless, on or before the Closing will be conditional upon Date, each of the conditions listed below in this section 5.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of the Vendors and subject to the following conditions being fulfilled at or prior to the Time of Closing, compliance with which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersCompany, on behalf of the Vendors, without prejudice to the right of termination in the event of non-fulfillment of any other condition::
(a) the Corporation will have made or obtained the necessary filings, approvals, consents representations and acceptances warranties of the appropriate Securities Commissions, Purchaser in this Agreement shall be true and correct in all material respects at the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionClosing;
(b) the directors of the Corporation Purchaser shall have authorized performed and approved complied in all material respects with the terms and conditions in this Agreement on its part to be performed or complied with at or before the Closing and shall have executed and delivered or caused to have been executed and delivered to the Vendors at the Closing all the documents, payments and certificates contemplated in section 6.3 hereof and elsewhere in this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it during the Interim Period, there shall be have been no Order made or any Legal Proceedings commenced or threatened for the case thatpurpose, or which could have the effect, of enjoining, preventing, or restraining the completion of the transactions contemplated by this Agreement;
(d) during the Interim Period, and the Corporation will deliver to the Underwriters a certificate in respect of the Corporation and signed on behalf of Purchaser, there shall not have occurred a Material Adverse Effect;
(e) the Corporation by the Purchaser shall have entered into revised agreements with its Chief Executive Officer or an executive officer of the Corporation and the its Chief Financial Officer Officer, terms of each to include base annual compensation of CAD$150,000, change of control provisions of at least eighteen (18) months and participation of both officers in option and other Purchaser compensation plans;
(f) the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇Purchaser shall have entered into an agreement with ▇▇▇▇ ▇▇▇▇▇ LLPas President of the Company, certifying thatterms of which to include base annual compensation of CAD$150,000, change of control provisions of at least eighteen (18) months and participation of ▇▇▇▇ ▇▇▇▇▇ in option and other Purchaser compensation plans;
(g) the Purchaser shall have completed a private placement financing resulting in at least $3,000,000 of gross proceeds to the Purchaser;
(h) the Purchaser will appoint one (1) nominee of the Vendors to the board of directors of the Purchaser; and
(i) all necessary regulatory, shareholder and third-party approvals and consents to the transactions contemplated by this Agreement, or otherwise required, shall have been obtained, including the approval of the Canadian Securities Exchange.
5.2 The Purchaser shall not be obligated to complete the transactions contemplated by this Agreement unless, on or before the Closing Date, each of the conditions listed below in this section 5.2 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser and compliance with which may be waived by the Purchaser without prejudice to the right of termination in the event of non-fulfillment of any other condition:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) the Company and the Vendors shall have performed and complied in all material respects with the terms and conditions in this Agreement on their respective part to be performed or complied with at or before the Closing and shall have executed and delivered or caused to have been executed and delivered to the Purchaser at the Closing all the documents, payments and certificates contemplated in section 6.2 hereof and elsewhere in this Agreement;
(c) the Purchaser shall be satisfied, in its sole discretion, with its business and legal due diligence investigations of the Company;
(d) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose of enjoining, preventing, or restraining the completion of the transactions contemplated by this Agreement;
(e) during the Interim Period, and in respect of the Company, there shall not have occurred a Material Adverse Effect; and
(f) all necessary regulatory, shareholder, and third-party approvals and consents to the transactions contemplated by this Agreement, or otherwise required, shall have been obtained and be in full force and effect.
Appears in 1 contract
Sources: Share Exchange Agreement
Conditions of Closing. 9.1 6.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing, except those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed;
(c) the receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Company, and all such approvals being in full force and effect;
(d) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(e) during the Interim Period, there shall have been no Order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
6.2 If any condition in section 6.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors or the Company to be made comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
6.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall do be true and correct in all that is requiredmaterial respects at the Closing, acting reasonably, to assist the Corporation to fulfill this conditionexcept those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the directors covenants and conditions of the Corporation Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have authorized been performed and approved this Agreement, the issuance of the Purchased Securities, and observed in all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingmaterial respects;
(c) it shall be the case that, receipt of any Consents necessary for this Agreement and the Corporation will deliver to the Underwriters a certificate completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(d) addressed during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(e) the Board of Directors of the Company shall have approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of the Company;
(f) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement: and
(g) the Exchange has accepted the transaction pursuant to this Agreement.
6.4 If any condition in section 6.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Underwriters and dated Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Closing Date Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 9.1 (a) The purchase and sale Company’s obligation to issue the Note to the Subscriber is subject to the conditions that:
(i) such issuance be conditionally accepted by the TSX;
(ii) the issuance of the Purchased Note and Underlying Securities are exempt from the prospectus filing requirements under applicable securities statutes, regulations, rules, policy statements and interpretation notes and by the applicable rules and policies of the TSX (collectively, “Securities Laws”); and
(iii) the representations and warranties of the Subscriber are true and correct as at the Closing will be conditional upon and Date.
(b) The Subscriber’s obligation to subscribe for the Note is subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(ai) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances issue of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained Note having been approved by the Corporation prior to board of directors of the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionCompany;
(bii) the directors issue of the Corporation shall have authorized and Note having been conditionally approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingTSX;
(ciii) it the Company shall be the case that, and the Corporation will deliver have provided evidence satisfactory to the Underwriters a certificate of Subscriber that the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable Company has obtained commitment to raise $500,000 in additional to the UnderwritersLoan Amount;
(iv) addressed to the Underwriters Company shall have maintained on Closing from Export Development Canada (“EDC”) and dated the Closing Date in form satisfactory to their counsel, St. ▇▇▇▇ Guarantee Insurance Company (“St. ▇▇▇▇ Guarantee”), an account receivables insurance policy (the “Receivable Insurance Policy”) insuring 90% of value of the Company’s world-wide account receivables (the “Receivables”);
(v) the Company shall have irrevocably directed EDC and St. ▇▇▇▇ Guarantee to pay the proceeds from the Receivable Insurance Policy to the holder(s) of the Series F Note shown on the Certified Holder’s List described in section 6(i)(i), in accordance with the Payment Instruction described in section 6(i)(ii), upon any claim made under the Receivable Insurance Policy;
(vi) the security interest granted by the Company in favour of each of persons shown in Schedule 3 shall have been discharged or postponed and subordinated to the security interest to be granted by the Company in favour of the Subscriber;
(vii) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP(“▇▇▇▇▇▇▇▇▇”) shall have provided a limited recourse guarantee (the “Guarantee”) for the Company’s obligations under the Note, certifying that:secured by a pledge of 800,000 shares in the Company beneficially owned by ▇▇▇▇▇▇▇▇▇ (the “Pledged Shares”) in accordance with a share pledge agreement by ▇▇▇▇▇▇▇▇▇ in favour of the Subscriber (the “Share Pledge Agreement”);
(viii) all covenants of the Company hereunder that are required to be performed on or prior to the Closing Date shall have been performed;
(ix) the Subscriber shall have been satisfied with the results of its due diligence review on the affairs of the Company; and
(x) the representations and warranties of the Company shall be true and correct as at the Closing Date.
(c) If any of the conditions set forth in (a) or (b) above is not satisfied or waived prior to Closing, this subscription agreement shall terminate and the parties shall have no further obligations hereunder.
Appears in 1 contract
Sources: Subscription Agreement (Adb Systems International LTD)
Conditions of Closing. 9.1 11.1 The purchase and sale of the Purchased Securities Assets and the Closing will be conditional upon and Purchased Shares are subject to the following terms and conditions being for the exclusive benefit of the Purchaser to be fulfilled and/or performed at or prior to Closing except in the Time case of Closingparagraph (h) below which must be fulfilled by November 7, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at 1997 or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
such later date as CCL shall approve acting reasonably: (a) the Corporation will have made or obtained Purchaser shall be satisfied that the necessary filingsrepresentations and warranties of CCL contained in this Agreement shall be true and correct in all material respects on the date hereof, approvalsexcept those representations and warranties that are qualified by the word "material", consents which representations shall be true and acceptances correct in all respects as of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
date hereof; (b) the directors representations and warranties of CCL contained in this Agreement shall be true and correct on and as of the Corporation Closing Date in all material respects, except those representations and warranties that are qualified by the word "material", which representations and warranties shall be true and correct in all respects and the Purchaser shall have authorized and approved this Agreementreceived on the Closing Date a certificate dated the Closing Date, in form reasonably satisfactory to counsel for the issuance of the Purchased SecuritiesPurchaser, and all matters relating thereto, it being hereby represented executed by the Corporation that such authorization and approval will be obtained prior CCL to the Time of Closing;
foregoing effect; (c) CCL shall have fulfilled and/or complied with, in all material respects, its obligations, covenants and agreements herein contained to be performed or caused to be performed by it and CCL shall be the case that, have executed and the Corporation will deliver to the Underwriters delivered a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date to the foregoing effect; (d) the consents and approvals referred to in Schedule 6.7 - Consents shall have been obtained in form and on terms satisfactory to their counselthe Purchaser, acting reasonably; (e) there is available to the Purchaser a policy of environmental liability insurance on substantially the terms set out in Schedule 8.4 - Environmental Insurance; (f) all Liens, except Permitted Liens, shall have been discharged; (g) no action or proceeding shall be pending or to the knowledge of CCL or the Purchaser, threatened by any person to enjoin, restrict or prohibit and no order shall have been obtained by any person enjoining, restricting or prohibiting the sale of any of the Purchased Assets or of the Purchased Shares to the Purchaser or the right of Kolmar and the Subsidiaries to continue to conduct the Business; and (h) ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, certifying that:shall have entered into an employment.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Aerosol Services Co Inc)
Conditions of Closing. 9.1 8.1 The obligations of the several Underwriters to purchase and sale of pay for the Purchased Securities and Notes as provided herein on the Closing Date will be conditional upon and subject to the accuracy of the representations and warranties on the part of the Corporation set forth in Section 7.1 hereof as of each Representation Date, as though then made, and to each of the following conditions being fulfilled at or prior to the Time of Closing, Closing which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d), (f), (g), (h) and (ei) may be waived in writing in whole or in part by the Lead Underwriters:
(a) the Preliminary Prospectus and the Prospectus shall have been filed with the Canadian Securities Regulators, and the Corporation will shall have made or obtained the all other necessary filings, approvals, consents and acceptances of the appropriate Canadian Securities Commissions, the Exchange and the NYSE Regulators required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the Indenture, the issuance of the Purchased SecuritiesNotes, the Prospectus and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Lead Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPthe Lead Underwriters, certifying that:
(i) the Prospectus is true and correct in all material respects and contains no misrepresentation;
(ii) no Material Adverse Change has occurred and no transaction out of the ordinary course of business and of a nature material to the Corporation has been entered into or announced since the date of the Prospectus;
Appears in 1 contract
Sources: Underwriting Agreement (Algonquin Power & Utilities Corp.)
Conditions of Closing. 9.1 The purchase and sale obligation of the Purchased Securities and the Closing will Agent to perform its obligations pursuant to this Agreement shall be conditional upon and subject the Agent being satisfied with the results of its due diligence investigations relating to the following conditions being fulfilled Company and upon the fulfilment or waiver by the Agent at or prior to before the Closing Time of Closingthe following conditions, which conditions the Corporation Company covenants to exercise use its commercially reasonable best efforts to have fulfil or cause to be fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersTime:
(a) the Corporation will have made or obtained execution and delivery of this Agreement and the necessary filings, approvals, consents creation and acceptances issuance of the appropriate Securities CommissionsOffered Shares and Agent’s Warrants, the Exchange due authorization of the issuance of the Offered Shares and the NYSE required to be made or obtained allotment and reservation of the Agent’s Shares, shall have been duly authorized by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionnecessary corporate action;
(b) the directors any necessary consents or approvals of the Corporation Securities Commissions and the SEC with respect to the issue and sale of the Offered Shares and Agent’s Warrants shall have authorized been obtained, and approved this Agreement, the issuance conditional approval of the Purchased Securities, Stock Exchange to list the Offered Shares and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingAgent’s Shares shall have been obtained;
(c) it the Agent shall be the case that, and the Corporation will deliver have received certificates addressed to the Underwriters a certificate Agent and to the Purchasers, dated as of the Corporation and Closing Date, signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (Company, or such other officer or officers of the Corporation Company as the Agent may accept, certifying on behalf of the Company to the effect that, except as has been generally disclosed at the date thereof:
(i) no order, ruling or determination suspending or cease trading the Common Shares has been issued, and no proceedings for that purpose have been instituted or, to the knowledge of such officer, contemplated or threatened by any Securities Commission or the SEC;
(ii) other than as disclosed in the Public Record, since December 31, 2009 there has not been any material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the condition, business, affairs, results, operations, assets or liabilities of the Company;
(iii) other than as disclosed in the Public Record, since December 31, 2009 no material fact has arisen or has been discovered which would have been required to have been stated in the Public Record in order to make the Public Record not misleading;
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time;
(v) the Company has complied in all material respects with all the terms and conditions of this Agreement on its part to be complied with at or before the Closing Time; and
(vi) as to such other matters of a factual nature as are appropriate and usual in the circumstances and as the Agent or the Agent’s counsel may reasonably request;
(d) the Agent shall have received favourable legal opinions dated as of the Closing Date, from counsel to the Company, substantially in the form annexed hereto as Schedule “A”, and where appropriate, counsel in the other Canadian Offering Jurisdictions and other jurisdictions as may be acceptable to the Underwriters) required, addressed to the Underwriters Agent and to the Purchasers with respect to such matters as the Agent may reasonably request prior to the Closing Time;
(e) the Company shall have delivered to the Agent a letter from the Company’s Auditors dated as of the Closing Date to the effect that they reaffirm the statements made in the letter provided pursuant to Section 5.8 of this Agreement; and
(f) the Company will have received the approval of the Agent, acting reasonably, regarding the form satisfactory and content of the Agent’s Warrant Certificate. In providing such opinions, counsel may, where appropriate, rely on the opinions of other counsel as to matters mentioned therein relating to jurisdictions where Company’s counsel does not practice law and on certificates or letters of the auditors, of the officers of the Company, of the transfer agents of the Company and public officials as to factual matters relevant to such opinions. The performance of the Company’s obligations pursuant to this Agreement shall be conditional upon the fulfilment by the Agent, or waiver by the Company, at or before the Closing Time, of the following conditions:
(a) the representations and warranties of the Agent contained in this Agreement are true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time; and
(b) the Agent shall have complied with all the terms and conditions of this Agreement on their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:part to be complied with at or before the Closing Time.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale following are conditions precedent to the obligation of the Purchased Securities and Agents to complete the Closing will be conditional upon and subject of the Purchasers to purchase the following conditions being fulfilled at or prior to the Time of ClosingOffered Securities, which conditions the Corporation hereby covenants and agrees to exercise its reasonable use the best efforts thereof to have fulfilled at or prior to fulfill within the Time of Closing time set out herein therefor, and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersAgents:
(ai) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized received all necessary approvals and approved consents, including all necessary regulatory approvals and consents (including those of the Stock Exchange) required for the completion of the transaction contemplated by this Agreement, all in a form satisfactory to the issuance Agents and the Stock Exchange shall have conditionally approved the listing thereon of the Purchased SecuritiesUnit Shares and the Warrant Shares, subject to the fulfillment of normal conditions;
(ii) receipt by the Agents of the documents set forth in section 5 of this Agreement to be delivered to the Agents;
(iii) the representations and warranties of the Corporation contained herein and in the Subscription Agreements being true and correct as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby;
(iv) the Corporation having complied with all covenants, and satisfied all matters relating theretoterms and conditions, it being hereby represented contained herein and in the Subscription Agreements to be complied with and satisfied by the Corporation that such authorization and approval will be obtained at or prior to the Time of ClosingClosing Time;
(cv) it the Subscription Receipt Agreement shall be have been duly executed by each of the case thatCorporation, Dundee and the Corporation will deliver to Subscription Receipt Agent;
(vi) the Underwriters a certificate of the Corporation and signed on behalf of the Corporation Warrant Indenture shall have been duly executed by the Chief Executive Officer or an executive officer each of the Corporation and the Chief Financial Officer of Warrant Agent; and
(vii) the Corporation (or such officers of Agents not having previously terminated the Corporation as may be acceptable obligations thereof pursuant to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:this Agreement.
Appears in 1 contract
Sources: Agency Agreement (Energy Fuels Inc)
Conditions of Closing. 9.1 (a) The purchase and sale Company's obligation to issue the Notes to the Subscriber is subject to the conditions that:
(i) such issuance be conditionally accepted by the Toronto Stock Exchange (the "TSX");
(ii) the issuance of the Purchased Securities Notes and the Closing will be conditional upon Underlying Securities are exempt from the registration requirements and prospectus filing requirements under applicable securities statutes, regulations, rules, policy statements and interpretation notes and by the applicable rules and policies of the TSX (collectively, "SECURITIES LAWS"); and
(iii) the execution and delivery by the Subscriber of the Termination and Waiver agreement.
(b) The Subscriber's obligation to subscribe for the Notes is subject to the following conditions being fulfilled at or conditions:
(i) the satisfactory completion of due diligence by the Subscriber prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionDate;
(bii) the issue of the Notes having been approved by the board of directors of the Corporation Company;
(iii) the issue of the Notes having been conditionally approved by the TSX;
(iv) the issue of the Series C Note as payment of the Termination Fee and payment by the Company to the Subscriber on Closing of any GST applicable on the Termination Fee;
(v) the Company shall have authorized and approved this Agreementcompleted, contemporaneously with the Closing hereunder, the issuance loan transaction (the "BRICK LOAN") whereby The Brick Warehouse Corporation ("THE BRICK") will have advanced to the Company on the Closing Date a first advance of not less than $1.0 million and an expense advance of not less than $0.5 million for payment of expenses related to the transaction with The Brick;
(vi) payment and satisfaction by the Company of the Purchased Due Diligence Fees as provided herein;
(vii) payment of the fees and disbursements of the Subscriber's counsel with respect to the transactions contemplated herein (the "SUBSCRIBER COUNSEL FEE") in the amount of $25,000 to Subscriber's counsel in trust; and
(viii) delivery of definitive agreements and all other documents and instruments required by the Subscriber including a legal opinion as to, among other things, resale restrictions applicable to the Notes and the Underlying Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior in form satisfactory to the Time of Closing;Subscriber and its counsel.
(c) it If any of the conditions sets forth in (a) and (b) above is not satisfied or waived prior to Closing, this subscription agreement shall be the case that, terminate and the Corporation will deliver parties shall have no further obligations hereunder except for the Company's obligation to pay the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation Due Diligence Fees and the Chief Financial Officer of Subscriber Counsel Fee from the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:Company's own funds.
Appears in 1 contract
Sources: Subscription Agreement (Adb Systems International LTD)
Conditions of Closing. 9.1 The purchase obligations of each of the parties hereunder are subject to the accuracy of the representations and warranties of the other parties hereto, to the performance by such other parties of their respective obligations hereunder and to the following further conditions:
(a) If requested by the Selling Agent, MLAI shall deliver a certificate to the effect that: (i) the representations and warranties of MLAI contained herein are true and correct with the same effect as though expressly made at the Initial Closing Time and in respect of the Memorandum as in effect at the Initial Closing Time; and (ii) MLAI has performed all covenants and agreements herein contained to be performed on its part as of or prior to the Initial Closing Time.
(b) As of the Initial Closing Time, Sidley Austin Brown & Wood LLP, counsel to the Manager, shall deliver ▇▇ ▇▇▇ ▇▇▇ par▇▇▇▇ hereto its opinion, in form and substance satisfactory to each of the parties hereto.
(c) The parties hereto shall have been furnished with such additional information, opinions, certificates and documents, including supporting documents relating to parties described in the Memorandum and letters of representation signed by such parties with regard to information relating to them and included in the Memorandum as they may reasonably require for the purpose of enabling them to pass upon the sale of the Purchased Securities Units as herein contemplated and related proceedings, in order to evidence the accuracy or completeness of any of the representations or warranties or the fulfillment of any of the conditions herein contained; and all actions taken by the parties hereto in connection with the sale of the Units as herein contemplated shall be reasonably satisfactory in form and substance to Sidley Austin Brown & Wood LLP. APPENDIX A
(d) As of each Additional Closing Time, the parties hereto shall have been furnished with such information, opinions and certified documents as the Manager and the Closing will Selling Agent may deem to be conditional upon necessary or appropriate. If any of the conditions specified in this Section 5 shall not have been fulfilled when and subject as required by this Agreement to be fulfilled, this Agreement and all obligations hereunder may be canceled by any party hereto by notifying the following conditions being fulfilled other parties hereto of such cancellation in writing or by telegram at any time at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Initial Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased SecuritiesTime, and all matters relating thereto, it being hereby represented by the Corporation that any such authorization and approval will be obtained prior to the Time of Closing;
(c) it cancellation or termination shall be the case that, and the Corporation will deliver without liability of any party to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation any other party except as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date otherwise provided in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:Section 6.
Appears in 1 contract
Sources: Selling Agreement (ML Chesapeake FuturesAccess LLC)
Conditions of Closing. 9.1 6.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing, except those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed;
(c) the receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Company, and all such approvals being in full force and effect;
(d) the Purchaser shall have arranged for repayment of no less then $150,000 of the Shareholder Loans, to the extent that such Shareholder Loans do not in aggregate exceed $1,100,000;
(e) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(f) during the Interim Period, there shall have been no Order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
6.2 If any condition in section 6.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors or the Company to be made comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
6.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall do be true and correct in all that is requiredmaterial respects at the Closing, acting reasonably, to assist the Corporation to fulfill this conditionexcept those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the directors covenants and conditions of the Corporation Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have authorized been performed and approved this Agreement, the issuance of the Purchased Securities, and observed in all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingmaterial respects;
(c) it shall be the case that, receipt of any Consents necessary for this Agreement and the Corporation will deliver to the Underwriters a certificate completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(d) addressed during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Underwriters and dated Company;
(e) the Closing Date in form satisfactory to their counselassets of the Company being free of all Adverse Interests, unless otherwise agreed by the Purchaser;
(f) each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP(Advisor – Finance), certifying that▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Lead Investigator – Clinical Research), ▇▇▇▇▇ ▇▇▇▇▇▇ (General Manager) and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-Cyrener (Qualified Person; President), having agreed to continue in their present positions with the Subsidiary, on substantially the same terms, for a period of no less than twenty-four (24) months following the Closing Date;
(g) the Board of Directors of the Company shall have approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of Incorporation of the Company; and
(h) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
6.4 If any condition in section 6.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 9.1 (a) The purchase obligation of Purchaser to acquire the Conveyed Interests under the terms of this Agreement is contingent upon the following:
i. Seller Parties’ representations and sale warranties in Section 2.1(b) shall be true and correct when made, and shall be true and correct on the Closing Date;
ii. Seller has delivered the items described in Section 1.5(b);
iii. Purchaser has received the items described in Section 1.5(d);
iv. Seller has paid to the Lenders that certain interest payment in the amount of $1,020,157.33 plus past due interest in the amount of $9,300.71, due and payable on December 31, 2015 which is due under the terms of the Purchased Securities Bridge Loan, such payment is to be made within five (5) business days upon execution of this Agreement, but in no event later than March 27, 2016;
v. Lenders of Abengoa Vista Ridge and the Closing will be conditional upon and subject Purchaser have agreed to mutually acceptable terms to the following Lender Consent (as described in Section 1.5(d)(i)) and Bridge Loan (as described as set out in Section 1.2(c));
vi. All litigation in connection with the Project involving Blue Water Systems, LP or its affiliates shall be resolved in the manner described in 1.5(d)(ii);
vii. Seller has performed all other obligations and conditions being fulfilled at required to be performed or observed by it on or prior to the Time Closing Date;
viii. Seller has satisfied with BAML the remaining amounts due under the terms of Closingthe BoA Debt Agreement which are in excess of the amount paid or to be paid to BAML pursuant to Section 1.2(b); and
ix. Seller has delivered to SAWS those documents and instruments for which it is responsible, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) as may be waived in writing in whole or in part required by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required SAWS related to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering its approval as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;per Section 1.5 below.
(b) The obligation of Seller to sell the directors Conveyed Interests under the terms of this Agreement is contingent upon the following:
i. Purchaser Parties have caused the payments to be paid, as set out in Sections 1.2 (a),(b) and (c) (collectively the “Transaction Payments”);
ii. Purchaser Parties’ representations and warranties in Section 2.1(a) shall be true and correct when made, and shall be true and correct on the Closing Date;
iii. Purchaser Parties are not, as of the Corporation shall have authorized Closing Date, in default of the Closing Covenants set out in Section 1.6;
iv. Purchaser has delivered the items described in Section 1.5(a);
v. Seller has received the items described in Section 1.5(c) and approved this Section 1.5(d);
vi. A termination of the Early Works Services Agreement, entered into as of July 23, 2015 (the issuance of the Purchased Securities“Early Works Services Agreement”), by and among CTRWSC and Abeinsa and, in connection therewith, a release by CTRWSC and Abengoa Vista Ridge, and all matters relating theretoother parties who may claim by or through CTRWSC or Abengoa Vista Ridge, it being hereby represented of all claims, rights and remedies they may have against Abeinsa, at law or in equity, for sums paid by Abengoa Vista Ridge to Abeinsa at the Corporation that such authorization direction of CTRWSC, in the amount of $118,735,00.00 (the “Bridge Loan Proceeds”), including any obligation for Abeinsa to repay to CTRWSC any Bridge Loan Proceeds.
vii. A termination of the Letter of Intent dated December 12, 2014 between Abengoa Vista Ridge and approval will be obtained prior to the Time of Closing;
(c) it shall be the case thatAbeinsa, and the Corporation will deliver a release of both parties thereto as to the Underwriters a certificate all obligations thereunder, including any obligation for Abeinsa to repay to Abengoa Vista Ridge any amounts advanced by Abengoa Vista Ridge thereunder.
viii. Purchaser Parties shall have released Seller Parties in connection with any other debt related to Abengoa Vista Ridge effective as of the Corporation and signed on behalf Closing Date.
ix. A release by SAWS of (i) the Abengoa guaranty arising under the terms of the Corporation by Guaranty Agreement (as defined in the Chief Executive Officer or an executive officer WTPA), and (ii) the Abengoa Letter of Support (as defined in the WTPA), as well as a substitution of a similar guaranty and letter of support and related documentation included in Appendix 16 of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇WTPA from ▇▇▇▇▇▇ ▇▇▇▇▇ LLPCompanies, certifying that:Inc. in favor of SAWS.
x. Purchaser has delivered to SAWS those documents and instruments for which it is responsible, as may be required by SAWS related to its approval as per Section 1.5 below.
xi. Purchaser Parties shall have performed all other obligations and conditions required to be performed or observed by it on or prior to the Closing Date.
(c) The above notwithstanding, in the event the Conditions to Closing are not completed or the Closing has not occurred by June 3, 2016, this Agreement shall automatically terminate and the Seller Parties, Abengoa Vista Ridge and Purchaser Parties will have no further obligations to each other under the terms of this Agreement; provided, however, if Purchaser Parties have paid the March Loan Payment at the time of the termination of this Agreement under this Section, Seller shall reimburse Purchaser a sum equal to the March Loan Payment within five (5) business days from the date of such termination.
(d) Notwithstanding anything to the contrary, upon Purchaser’s payment of the March Loan Payment, Seller may not terminate this Agreement except in the case of a default by Purchaser or as per Section 1.4 (c) above.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale in Favour of the Purchased Securities and Purchaser The obligations of the Closing will be conditional upon and Purchaser to complete the Transaction are subject to the fulfillment of the following conditions being fulfilled at on or prior to before the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will Shareholders and FSB shall have made tendered all closing deliveries set forth in Sections 4.03 and 4.04, respectively, including delivery of the Purchased Shares, duly endorsed in blank for transfer or accompanied by duly executed stock transfer powers;
(b) receipt of evidence of the approval of the Shareholders, if applicable;
(c) on or before the Closing Time, FSB shall have obtained the necessary filings, approvals, consents and acceptances consent of each of the appropriate Securities CommissionsNew FSB Shareholders, if any, evidenced by the Exchange delivery of the FSB Shareholder Consent Agreements;
(d) the Common Shares, including the Payment Shares and the NYSE required Finder’s Fee Shares, shall have been approved for listing on the OTC, subject to the usual requirements of the OTC in respect of transactions of the nature of the Transaction as contemplated herein;
(e) Any Financing shall have been completed or if completed in escrow pending the Closing, then all conditions necessary to release such escrow shall have been satisfied (other than the completion of the Transaction);
(f) neither FSB nor any of the Shareholders shall have violated Section 9.01;
(g) the representations and warranties of FSB set forth in this Agreement shall have been true and correct as of the date hereof and shall be made or obtained by the Corporation prior to true and correct at the Time of Closing in order all respects (in the case of any representation or warranty containing any materiality or Material Adverse Effect qualifier) or in all material respects (in the case of any representation or warranty without any materiality or Material Adverse Effect qualifier), except as affected by the transactions contemplated by this Agreement, and a certificate of a senior officer of FSB to complete this effect shall have been delivered to the Offering Purchaser;
(h) all of the terms, covenants and conditions of this Agreement to be complied with or performed by FSB at or before the Time of Closing will have been complied with or performed and a certificate of a senior officer of FSB to this effect shall have been delivered to the Purchaser;
(i) the representations and warranties of the Shareholders set forth in this Agreement shall have been true and correct in all material respects as herein contemplatedof the date hereof and shall be true and correct in all material respects as of the Time of Closing and delivery by each Shareholder of the documents described in Section 4.04 required to be delivered by such Shareholder shall constitute a reaffirmation and confirmation by such Shareholder of such representations and warranties;
(j) all of the terms, covenants and conditions of this Agreement to be complied with or performed by the Shareholder at or before the Time of Closing will have been complied with or performed and delivery of the documents described in Section 4.04 shall constitute confirmation of such compliance and performance;
(k) the Purchaser shall be satisfied with the results of its due diligence investigations relating to FSB and the Transaction, acting reasonably;
(l) each of the principals of FSB will enter into a form of confidentiality and indemnity agreement satisfactory to the Purchaser prior to the Closing Date;
(m) all consents, assignments, waivers, permits, orders and approvals of all Governmental Authorities or other persons, including all those party to the material contracts listed in Schedule 5.03(p), necessary to conduct the business of FSB or permit the completion of the Transaction shall have been obtained or have been attempted to be obtained on a best efforts basis;
(n) there shall not have been after the date of this Agreement any Material Adverse Effect with respect to FSB;
(o) there shall be no action taken under any applicable law by any court or Governmental Authority that makes it being understood that illegal or restrains, enjoins or prohibits the Underwriters shall do all Transaction, results in a judgment or assessment of damages relating to the Transaction that is requiredmaterially adverse to the Purchaser or FSB or that could reasonably be expected to impose any condition or restriction upon the Purchaser or FSB which, after giving effect to the Transaction, would so materially and adversely impact the economic or business benefits of the Transaction as to render inadvisable the consummation of the Transaction;
(p) there shall be no legislation (whether by statute, regulation, order-in-council, notice of ways and means motion, by-law or otherwise) enacted, introduced or tabled which, in the opinion of the Purchaser, acting reasonably, to assist adversely affects or may adversely affect the Corporation to fulfill this condition;Transaction; and
(bq) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date shall be on or before the Termination Date. The foregoing conditions precedent are for the benefit of the Purchaser and may be waived by the Purchaser, in form satisfactory whole or in part, without prejudice to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the Purchaser’s right to rely on any other condition in favour of the Purchaser.
Appears in 1 contract
Conditions of Closing. 9.1 5.1 The purchase and sale obligation of the Purchased Securities and Subscriber to purchase the Shares on Closing will be conditional upon and subject to the fulfillment, on or before the Closing Date, of the following conditions being fulfilled at or prior to the Time of Closingconditions, compliance with which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersSubscriber, in its sole discretion, before Closing and upon such terms as it may consider appropriate:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents representations and acceptances warranties of the appropriate Securities Commissions, Issuer contained herein being true and correct in all material respects at and as of the Exchange Closing Date as though such representations had been made as of and on the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionDate;
(b) the directors Issuer has complied with and performed all of the Corporation shall have authorized covenants, agreements and approved this Agreementconditions required hereby to be completed on or prior to Closing; and
(c) no order, judgment, injunction, decree, award or writ of any court, tribunal, arbitrator, governmental agency or any other person has been entered which prohibits or restricts the Closing or the issuance of the Purchased SecuritiesShares in connection therewith; and
(d) Subscriber has received the documents specified in subsection 7.3.
5.2 The obligation of the Issuer to complete the subscription hereby contemplated and to issue the Shares on Closing will be subject to the fulfillment, and all matters relating theretoon or before the Closing Date, it being hereby represented of the following conditions, compliance with which may be waived in writing by the Corporation that Issuer, in its sole discretion, before Closing and upon such authorization terms as it may consider appropriate:
(a) the representations and approval will warranties of the Subscriber contained herein being true and correct in all material respects at and as of the Closing Date as though such representations had been made as of and on the Closing Date;
(b) the Subscriber has complied with and performed all of the covenants, agreements and conditions required hereby to be obtained completed on or prior to the Time of Closing;
(c) it shall be no order, judgement, injunction, decree, award or writ of any court, tribunal arbitrator governmental agency or any other person has been entered which prohibits or restricts the case that, and Closing or the Corporation will deliver to the Underwriters a certificate issuance of the Corporation and signed on behalf of Shares in connection therewith; and
(d) the Corporation by Issuer has received the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date documents specified in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:subsection 7.4.
Appears in 1 contract
Sources: Share Subscription Agreement (Platinum Group Metals LTD)
Conditions of Closing. 9.1 5.1 Conditions of Closing in Favour of New Gold The purchase and sale completion of the Purchased Securities and the Closing will be conditional upon and transactions contemplated herein is subject to the following conditions being for the exclusive benefit of New Gold, to be fulfilled or performed, unless otherwise stated, at or prior to Closing:
(a) the Time representations and warranties of ClosingArtemis and Purchaser set out in Section 3.2 will be true and correct in all respects, without regard to any materiality or Material Adverse Change qualifications contained in them, as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date), except where the failure of such representations and warranties to be true and correct in all respects would not, individually or in the aggregate, be material and adverse to the ability of Artemis and Purchaser to consummate the transactions and carry out the obligations contemplated under this Agreement and the Ancillary Agreements, and a certificate of a senior officer of each of Artemis and Purchaser dated the Closing Date to that effect will have been delivered to New Gold, such certificate to be in form and substance satisfactory to New Gold, acting reasonably;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by Artemis or Purchaser at or before Closing will have been complied with or performed in all material respects, or if already so qualified, performed in all respects, and a certificate of a senior officer of each of Artemis and Purchaser dated the Corporation covenants Closing Date to exercise that effect will have been delivered to New Gold, such certificate to be in form and substance satisfactory to New Gold, acting reasonably;
(c) the Parties will have received the Material Consents and all of the Material Contracts and Material Permits will have been transferred to Purchaser and all such Material Consents shall, to the extent necessary, contemplate the Pre-Closing Reorganization and the granting of security to New Gold pursuant to the security documents referenced in Section 5.1(e) and 5.1(f);
(d) the Parties will have received the Required Regulatory Approvals;
(e) Purchaser and Artemis will have granted the security required in favour of New Gold in support of their obligations in respect of the Second Payment pursuant to security documents in a form acceptable to New Gold and Purchaser, acting reasonably, creating a first priority charge over the Project, the Purchased Assets and a pledge over all the shares of Purchaser subject to the permitted encumbrances described therein, together with an opinion of counsel to the Purchaser in form and substance satisfactory to New Gold, acting reasonably, with respect to such documentation;
(f) Purchaser and Artemis will have granted the security required by the Gold Stream Agreement in favour of New Gold in support of their obligations under the Gold Stream Agreement pursuant to security documents in a form acceptable to New Gold and Purchaser, acting reasonably, creating a first priority charge over the Project, the Purchased Assets (and other property as specified therein) and a pledge over all the shares of Purchaser subject to the security interest granted by Purchaser and Artemis over the Project in favour of New Gold in connection with its reasonable best efforts obligations under this Agreement and the other permitted encumbrances described therein, together with an opinion of counsel to the Purchaser in form and substance satisfactory to New Gold, acting reasonably, with respect to such documentation;
(g) to the extent that the Financing consists of any amount of indebtedness, documents in a form acceptable to New Gold, acting reasonably, subordinating and postponing the rights and claims of the Committed Investor in respect of such indebtedness to New Gold, together with an opinion of counsel to the Purchaser in form and substance satisfactory to New Gold, acting reasonably, with respect to such documentation;
(h) Artemis and Purchaser shall have fulfilled at tabled the Closing deliverables required to be delivered to New Gold pursuant to Sections 6.2(c), 6.2(d) and 6.4;
(i) the Pre-Closing Reorganization shall have been completed on the terms set forth in Exhibit G or on such other terms as are acceptable to the Parties, acting reasonably;
(j) the TSX Venture Exchange shall have approved the issuance and listing of the Consideration Shares on or prior to the Time Closing Date subject only to ordinary conditions typical for the issuance and listing of Closing common shares;
(k) no delisting, suspension of trading or cease trade or other order or restriction having a similar effect shall have occurred or be in effect with respect to Artemis or any of its securities; and
(l) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute, rule, regulation or executive order promulgated or enacted by a Governmental Authority, which conditions restrains, enjoins, prohibits, or otherwise makes illegal the consummation by New Gold, Artemis or Purchaser of the transactions contemplated hereby shall be in paragraphs (c), (d) and (e) effect. Any condition contained in this Section 5.1 may be waived in writing in whole or in part by New Gold without prejudice to any Claim it may have for breach of covenant, representation or warranty.
5.2 Conditions of Closing in Favour of Artemis and Purchaser The completion of the Underwriterstransactions contemplated herein is subject to the following conditions for the exclusive benefit of each of Artemis and Purchaser, to be fulfilled or performed, unless otherwise stated, at or prior to Closing:
(a) the Corporation representations and warranties of New Gold set out in Section 3.1 will be true and correct in all respects, without regard to any materiality or Material Adverse Change qualifications contained in them, as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date), except where the failure of such representations and warranties to be true and correct in all respects would not, individually or in the aggregate, have a Material Adverse Change, and a certificate of a director or senior officer of New Gold dated the Closing Date to that effect will have made or obtained the necessary filingsbeen delivered to Artemis and Purchaser, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required such certificate to be made or obtained by the Corporation prior in form and substance satisfactory to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is requiredArtemis and Purchaser, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors all of the Corporation shall terms, covenants and conditions of this Agreement to be complied with or performed by New Gold at or before Closing will have authorized and approved this Agreementbeen complied with or performed in all material respects, the issuance of the Purchased Securitiesor if already so qualified, performed in all respects, and all matters relating theretoa certificate of a director or senior officer of New Gold dated the Closing Date to that effect will have been delivered to Artemis and Purchaser, it being hereby represented by the Corporation that such authorization certificate to be in form and approval will be obtained prior substance satisfactory to the Time of ClosingArtemis and Purchaser, acting reasonably;
(c) it the Parties will have received the Material Consents and all of the Material Contracts and Permits will have been transferred or assigned to Purchaser;
(d) the Parties will have received the Required Regulatory Approvals;
(e) the BNS Lien shall have been amended to exclude the Purchased Assets or an acknowledgement of the registered party under the BNS Lien shall have been delivered to and in favour of the Purchaser confirming that the BNS Lien does not extend to the Purchased Assets;
(f) New Gold shall have tabled the Closing deliverables required to be delivered to Artemis and Purchaser pursuant to Section 6.3;
(g) no Material Adverse Change shall have occurred; and
(h) no preliminary or permanent injunction or other order, decree, or ruling issued by a Governmental Authority, and no statute, rule, regulation or executive order promulgated or enacted by a Governmental Authority, which restrains, enjoins, prohibits, or otherwise makes illegal the consummation by New Gold, Artemis or Purchaser of the transactions contemplated hereby shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as in effect. Any condition contained in this Section 5.2 may be acceptable waived in whole or in part by Artemis and Purchaser without prejudice to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counselany Claim they may have for any breach of covenant, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:representation or warranty.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale obligation of the Purchased Securities and Underwriters to purchase the Initial Shares at the Closing will Time on the Closing Date and to purchase any Additional Shares at the Closing Time on an Option Closing Date shall be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing:
(a) the Corporation will Underwriters shall have made received a certificate of status (or obtained the necessary filings, approvals, consents and acceptances of equivalent thereof pursuant to the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation relevant governing legislation) dated within one business day prior to the Time Closing Date from each of Closing in order to complete the Offering as herein contemplated, it being understood that Company and the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionmaterial GTI Entities;
(b) the directors Underwriters shall have received a certificate from the Company, dated as of the Corporation shall have authorized Closing Date and approved addressed to the Underwriters, signed by an officer of such person with respect to the Constating Documents of the Company, all resolutions of the Company’s board of directors relating to the Offering Documents and this Agreement, and the issuance transactions contemplated hereby and thereby, the incumbency and specimen signatures of the Purchased Securitiessigning officers, and all such other matters relating thereto, it being hereby represented by as the Corporation that such authorization and approval will be obtained prior to the Time of ClosingUnderwriters may reasonably request;
(c) it the Underwriters shall be have received a certificate from the case thatCompany, dated as of the Closing Date and the Corporation will deliver addressed to the Underwriters a certificate of the Corporation and Underwriters, signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation Company, certifying for and on behalf of the Company, to the best of their knowledge, information and belief, that, as at the Closing Time:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in the Offered Shares or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any regulatory authority;
(ii) since July 20, 2018, (A) there has been no adverse change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and the Subsidiaries (taken as a whole); and (B) other than as disclosed in the Offering Documents, no transaction has been entered into by the Company or any Subsidiary which is or would be material to such person other than in the ordinary course of business;
(iii) the Company has complied with all the material terms, and fulfilled the covenants and conditions of this Agreement on its part to be complied with up to the Closing Time;
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement; and
(v) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Subordinate Voting Shares or other securities of the Company, or the Offered Shares to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(d) the Underwriters shall have received satisfactory evidence that all requisite regulatory approvals and consents have been obtained by the Company in order to complete the Offering; and (ii) all necessary forms have been filed with the CSE to effect the listing of the Offered Shares on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(e) the Underwriters shall have received a legal opinion addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from Canadian legal counsel for the Company, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of the Corporation Company, as appropriate and subject to confirmation by the Underwriters, with respect to the following matters:
(i) the Company is a corporation incorporated as a company under the laws of British Columbia, is an existing company, and is, with respect to the filing of annual returns, in good standing under the Business Corporations Act (British Columbia);
(ii) the Company has all requisite corporate power, capacity and authority to own and lease its properties and assets, to carry on business and to execute and deliver this Agreement and to perform its obligations hereunder, including to offer, issue, sell and deliver the Initial Shares and to grant the Over- Allotment Option and offer, issue, sell and deliver the Additional Shares issuable upon exercise of the Over-Allotment Option;
(iii) as to the authorized and issued capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Offered Shares are accurately summarized in all material respects in the Prospectus;
(v) all necessary corporate action has been taken by the Company to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder, including the creation, offering, issue and sale of the Offered Shares and the creation and grant of the Over-Allotment Option;
(vi) this Agreement has been duly executed and delivered by the Company;
(vii) this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms;
(viii) the execution and delivery by the Company of this Agreement, the performance of its obligations hereunder including the creation, offering, issue and sale of the Offered Shares and the creation and grant of the Over- Allotment Option, do not and will not breach of or result in a default under, and do not creates a state of facts which, after notice or lapse of time or both, will results in a breach of or default under: (i) the Business Corporations Act (British Columbia); (ii) the Company’s notice of articles and articles; or (iii) any resolutions of the directions or shareholders of the Company;
(ix) the Initial Shares have been duly and validly authorized, created and issued by the Company and are validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares;
(x) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares issuable upon the exercise of the Over-Allotment Option have been duly and validly allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares will be duly and validly authorized and issued and will be outstanding as fully paid and non-assessable Common Shares;
(xi) Odyssey Trust Company, at its principal office in the City of Calgary, Alberta, has been duly appointed by the Company as the registrar and transfer agent for the Subordinate Voting Shares;
(xii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xiii) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof in each of the Qualifying Jurisdictions;
(xiv) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Initial Shares, the Over-Allotment Option and the Additional Shares in each of the Qualifying Jurisdictions through dealers who are registered under Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xv) all necessary forms have been filed with the CSE to effect the listing of the Offered Shares on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(xvi) as to the accuracy of the legal statements under the heading “Eligibility For Investment” and “Certain Canadian Federal Income Tax Considerations” in the Prospectus; and
(xvii) such other matters as the Underwriters and their counsel may be acceptable require, acting reasonably;
(f) the Underwriters shall have received a favourable legal opinion of United States counsel to the Company, addressed to the Underwriters, in form and substance acceptable to counsel to the Underwriters, acting reasonably, dated the Closing Date to the effect that no registration of the Offered Shares offered and sold to purchasers in the United States is or shall be required under the U.S. Securities Act;
(g) the Underwriters shall have received a legal opinion addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from United States counsel to the Company, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of GTI, as appropriate and subject to confirmation by the Underwriters, with respect to the following matters:
(i) GTI is duly incorporated, validly existing and in good standing in the jurisdiction of its incorporation;
(ii) GTI has the power and authority under Section 18-106 of the Delaware Limited Liability Act to conduct any lawful business activity;
(iii) the authorized and issued capital of GTI and the ownership thereof; and
(iv) such other matters as the Underwriters and their counsel may require, acting reasonably;
(h) the Underwriters shall have received a legal opinion addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from local counsel to GTI Core, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of GTI Core, and subject to confirmation by the Underwriters, with respect to the following matters:
(i) GTI Core is duly incorporated validly existing and in good standing in the jurisdiction of its incorporation;
(ii) GTI Core has the corporate power to own, lease and operate its properties and conduct its business as currently conducted; and
(iii) the authorized and issued capital of GTI Core and the ownership thereof;
(i) the Underwriters shall have received satisfactory evidence that all requisite approvals and consents have been obtained by the Company in order to complete the Offering;
(j) the Company shall cause the appropriate auditors to deliver to the Underwriters one or more “bring down” comfort letters, addressed to the Underwriters and the board of directors of the Company, dated the Closing Date Date, in form and substance satisfactory to their counselthe Underwriters, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPacting reasonably, certifying that:bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letters referred to in Section 5(a)(iii) hereof;
(k) the representations and warranties of the Company contained in this Agreement will be true in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) at and as of the Closing Time on the Closing Date as if such representations and warranties were made at and as of such time and all agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by the Company at or prior to the Closing Time on the Closing Date will have been performed, complied with or satisfied at or prior to that time;
(l) there shall not be any misrepresentation in the Offering Documents or any undisclosed material change or undisclosed material facts relating to the Company or the Offered Shares;
(m) the Company shall have received a Preliminary Receipt and a Final Receipt qualifying the Offered Shares for distribution in the Qualifying Jurisdictions, and neither the Preliminary Receipt nor the Final Receipt shall be invalid or have been revoked or rescinded by any Securities Commission;
(n) the Underwriters shall have received a certificate from Odyssey Trust Company as to the number of Subordinate Voting Shares issued and outstanding as at the date immediately prior to the Closing Date; and
(o) the Underwriters shall have received such other certificates, opinions, agreements or closing documents in form and substance reasonably satisfactory to the Underwriters as the Underwriters may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 9.1 The purchase and sale obligations of the Purchased Securities and Purchaser to complete the Closing will be conditional upon and purchase of the Shares is subject to the following conditions being fulfilled at satisfaction on or prior to before the Time of Closing, which conditions for the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to exclusive benefit of the Time Purchaser, of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by each of the Underwritersfollowing conditions:
(a) the Corporation will representations and warranties of the Company in Section 3 of this Agreement shall be true and correct in all material respects as at the Closing with the same force and effect as if such representations and warranties had been made at and as of the Closing;
(b) the Company shall have, in all material respects, performed and complied with all covenants and agreements in this Agreement to be performed or complied with, or caused to be performed or complied with, by the Company at or prior to the Closing;
(c) the Company shall have made or all necessary filings and obtained the all necessary filings, shareholder and regulatory approvals, consents consents, authorizations and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained in respect of the offering of the Shares;
(d) the Stock Exchange shall have accepted notice of the offering and sale of the Shares on the terms contemplated herein and shall have conditionally approved the listing of the Shares, subject to the Company fulfilling the requirements as to the filing of certain documents and the payment of the necessary listing fees;
(e) the Purchaser shall have completed the acquisition of all of the outstanding shares of Mineral Ridge Resources Inc. from Cornucopia Resources Inc. in accordance with the terms of the share purchase and sale agreement made October 21, 1998 among Cornucopia Resources Inc., the Company, Vista Gold Holdings Inc. and the Purchaser;
(f) since June 30, 1998, there shall have been no adverse material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and its subsidiaries, except as disclosed to and accepted by the Corporation prior Purchaser;
(g) no transaction shall have been entered into by the Company or any of its subsidiaries which is or would be material to the Time of Closing Company and its subsidiaries which is or would be material to the Company and its subsidiaries on a consolidated basis, except as disclosed to and accepted by the Purchaser;
(h) a certificate or certificates representing the Shares, in order form and substance satisfactory to complete the Offering as herein contemplatedPurchaser and its counsel acting reasonably, it being understood that shall have been executed and delivered to the Underwriters Purchaser;
(i) the Purchaser shall do all that is requiredhave completed a due diligence review satisfactory to the Purchaser in its sole discretion, acting reasonably, to assist of the Corporation to fulfill this financial condition;, business, affairs, properties and assets of the Company; and
(bj) the directors Purchaser shall have received a certificate, dated as of the Corporation shall have authorized and approved this AgreementClosing Date, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented signed by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation President and the Chief Financial Officer of the Corporation (Company or such any other officers of the Corporation as may be Company acceptable to the Underwriters) addressed Purchaser, certifying for and on behalf of the Company, to the Underwriters best of their knowledge, information and dated the Closing Date in form satisfactory to their counselbelief, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:
(i) the representations and warranties of the Company in Section 3 of this Agreement are true and correct in all material respects as at the Closing;
(ii) the Company has, in all material respects, performed and complied with all covenants and agreements in this Agreement to be performed or complied with, or caused to be performed or complied with, by the Company at or prior to the Closing;
(iii) the Company has made all necessary filings and obtained all necessary shareholder and regulatory approvals, consents, authorizations and acceptances required to be made or obtained in respect of the offering of the Shares;
(iv) since June 30, 1998, there has been no adverse material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and its subsidiaries; and
(v) no transaction has been entered into by the Company or any of its subsidiaries which is or would be material to the Company and its subsidiaries on a consolidated basis.
Appears in 1 contract
Sources: Share Purchase and Sale Agreement (Vista Gold Corp)
Conditions of Closing. 9.1 (a) Conditions Precedent to the Obligations of All Parties. ------------------------------------------------------ The purchase respective obligations of each and sale of all parties to consummate the Purchased Securities and transactions contemplated by this Agreement at the Closing will be conditional upon and are subject to the fulfillment prior to or at the Closing of each of the following conditions, except as such parties may legally waive such conditions being fulfilled in writing, and at Closing the duly authorized representatives of each of ▇▇▇▇▇▇ and Purchaser shall each execute and deliver to the other a certificate or certificates certifying as to such satisfaction or specific waiver of same:
(i) On the Closing Date, there shall not be pending or threatened any claim, action, suit or proceeding against any of the parties hereto which, if adversely determined, might prevent or materially hinder the consummation of the transactions contemplated by this Agreement or any of them or result in the payment of substantial damages as a result of any of the transactions contemplated by this Agreement, or cause any party to violate any order or judgment or otherwise materially impair the benefits of any party or parties contemplated hereby, and no investigation by any governmental agency shall be pending or threatened which might eventually result in any such suit, action or proceeding.
(ii) The Board of Directors of Southmark shall have approved unconditionally in writing the transactions contemplated by this Agreement pursuant to Article Tenth of the Articles of Incorporation, as amended, of Southmark.
(iii) The Board of Directors of Southmark shall have approved unconditionally in writing the "GBL Transaction" (as that phrase is defined below) pursuant to Article Tenth of the Articles of Incorporation, as amended, of Southmark.
(b) Conditions Precedent to the Obligations of the ---------------------------------------------- Purchaser. All obligations of the Purchaser to consummate the --------- transactions contemplated by this Agreement are subject to the fulfillment, prior to or at the Closing of each of the following conditions, except as the Purchaser may legally waive such conditions in writing:
(i) Other than any representation or warranty made as of the specified date (each of which needs to be true and correct only as of such specified date) and except as otherwise contemplated or permitted by this Agreement, all representations and warranties of ▇▇▇▇▇▇ contained in this Agreement shall be true and correct in all respects on and as of the Closing Date as if made on and as of the Closing Date and ▇▇▇▇▇▇ shall deliver to Purchaser a certificate or certificates dated at the Closing Date and executed on behalf of ▇▇▇▇▇▇ to such effect.
(ii) The Purchaser shall have received appropriate documents evidencing the transfer of all shares of Preferred Stock and Common Stock of Southmark owned by ▇▇▇▇▇▇ which shall consist of at least 178,270.25 shares of Preferred Stock and 2,358 shares of Common Stock of Southmark in accordance with the requirements of this Agreement.
(iii) There shall not have occurred a material adverse change since the date of this Agreement in the condition, financial or otherwise, of Southmark at Closing; provided that the ultimate conclusion or outcome of any litigation pending on the date of this Agreement to which Southmark is a party shall not be deemed --- a material adverse change.
(iv) Any other consents, waivers, acknowledgments, etc., of all third Persons, including those set forth on Exhibit "1" attached hereto and incorporated herein, shall have been received on or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior Closing Date and copies thereof delivered to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:Purchaser.
(av) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP▇▇▇▇, certifying that:Ltd., an Illinois Partnership ("GBL") shall have closed (or will simultaneously with the Closing hereunder, close) the transaction between Purchaser and GBL resulting in Purchaser acquiring from GBL at least 787,271 shares of Preferred Stock and 7,343,156 shares of Common Stock of Southmark (the "GBL Transaction").
Appears in 1 contract
Conditions of Closing. 9.1 13.1 The purchase and sale of the Purchased Securities and the Closing Underwriters’ obligations under this Agreement will be conditional upon and subject to the following conditions being fulfilled at or prior to which are for the Time exclusive benefit of Closingthe Underwriters, any of which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing waived, in whole or in part part, by the Underwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Corporation Underwriters will have made received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s Canadian counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to the following matters:
(i) the Issuer:
(1) is a corporation incorporated and validly existing under the laws of its jurisdiction of incorporation; and
(2) has all necessary corporate power, authority and capacity to own or obtained lease its property and assets and to carry on its business as presently conducted as described in the Final Prospectus;
(ii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Canadian Final Prospectus will be validly issued and outstanding as fully paid and non-assessable securities of the Issuer;
(iii) to its knowledge, as of the Closing Time, except for the 6.25% convertible subordinated unsecured debentures due June 30, 2018, the 6.75% convertible subordinated unsecured debentures due June 30, 2015 and the 7.50% convertible subordinated unsecured debentures due October 31, 2o14, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary filingscorporate action has been taken by the Issuer to authorize the creation, issue, sale and delivery of the Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly issued and are outstanding as fully paid and non-assessable shares of the Issuer;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the performance of its obligations hereunder, and this Agreement has been duly executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms, provided that enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance, injunctive relief and other equitable remedies may be granted only in the discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, consents authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and acceptances the delivery of this Agreement, and the consummation of the appropriate Securities CommissionsOffering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Canadian Preliminary Prospectus, the Exchange Canadian Amended Preliminary Prospectus and the NYSE required to be made or obtained Canadian Final Prospectus, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Corporation prior Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the Time use of Closing the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and all other legal requirements have been fulfilled under the laws of each of the Qualifying Jurisdictions in order to complete qualify the Offering Offered Shares for distribution and sale to the public through investment dealers or brokers who are registered under applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of such applicable legislation;
(xii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as herein contemplateddefined in the Tax Act, it being understood the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans (except a deferred profit sharing plan to which the Issuer, or an employer that does not deal at arm’s length with the Underwriters shall do all that is requiredIssuer, acting reasonablyhas made a contribution), registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to assist the Corporation to fulfill this condition;Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the directors Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) Closing Date addressed to the Underwriters and dated from the Closing Date Issuer’s U.S. securities counsel in form satisfactory and content to the reasonable satisfaction of the Underwriters’ counsel with respect to the following matters:
(i) The Registration Statement and the U.S. Final Prospectus, as of their counselrespective effective or issue dates, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPappear on their face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act, certifying that:except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them, and the statements in the Disclosure Package and the U.S. Final Prospectus under the caption “Income Tax Considerations - Certain United States Federal Income Tax Considerations,” as to which such counsel expresses no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no opinion) is required under any Applicable Law for the issuance or sale of the Offered Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any executive, legislative, judicial, administrative or regulatory body of the United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and regulations of the United States of America, in each case which are normally applicable to the transactions of the type contemplated by this Agreement;
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Conditions of Closing. 9.1 5.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless, at the following conditions being fulfilled at or prior to the Time of Acquisition Closing, which each of the conditions listed below is satisfied, it being understood that the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to said conditions are included for the Time exclusive benefit of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in section 4.3 of this Agreement shall be true and correct in all material respects at the Acquisition Closing Date;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Acquisition Closing shall have been performed and observed in all material respects;
(c) the receipt of any approvals or consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, and all such approvals being in full force and effect;
(d) there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(e) there shall have been no order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
5.2 If any condition in section 5.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors to be made comply with its obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
5.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Purchased Shares pursuant to this Agreement and the other transactions contemplated herein, unless, at the Acquisition Closing, each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors as set out in section 4.1 of this Agreement shall do be true and correct in all that is required, acting reasonably, to assist material respects at the Corporation to fulfill this condition;Acquisition Closing Date;
(b) the directors representations and warranties of the Corporation Company as set out in section 4.2 of this Agreement shall have authorized be true and approved this Agreement, correct in all material respects at the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingAcquisition Closing Date;
(c) it the covenants and conditions of the Vendor to be performed and observed in this Agreement prior to or at Acquisition Closing shall be have been performed and observed in all material respects;
(d) the case that, Vendors and the Corporation will deliver to Company having entered into and provided all information, forms, certificates, undertakings, agreements and other documents and instruments that may be required by the Underwriters a certificate Exchange;
(e) the receipt of any approvals or consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(f) addressed the completion of the transactions contemplated herein not constituting a “fundamental change” or a “change of business” for the Purchaser, as defined in the policies of the Exchange;
(g) there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(h) the Company shall have no Company Employees and there shall be no liabilities owing to former Company Employees;
(i) the Board of Directors of the Company shall have approved the transfer of the Purchased Shares contemplated in this Agreement, in accordance with the constating documents of the Company; and
(j) there shall have been no order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
5.4 If any condition in section 5.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Underwriters and dated Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Closing Date Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 9.1 (1) The completion of the purchase and sale of the Purchased Securities and 1% Holder Shares in connection with the Closing will be conditional upon and exercise of the On-Default Option is subject to the following conditions being to be fulfilled at or prior to performed, on or before the Time of ClosingOn-Default Option Closing Date, which conditions are for the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to exclusive benefit of the Time of Closing On-Default Option Holders and which conditions in paragraphs (c), (d) and (e) may be waived in writing waived, in whole or in part part, by the Underwritersan On-Default Option Holder in its sole discretion:
(a) the Corporation 1% Holder must represent and warrant to the On-Default Option Holders that (i) on the On-Default Option Closing Date, the 1% Holder Shares are owned by the 1% Holder as the beneficial owner with good title, free and clear of all Liens other than those restrictions contained in the Articles and this Agreement, and (ii) upon completion, the On-Default Option Holders will have made or obtained good and valid title to the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained 1% Holder Shares sold by the Corporation prior to 1% Holder, free and clear of all Liens other than (A) those contained in the Time of Closing in order to complete Articles and this Agreement, (B) Liens granted by the Offering as herein contemplatedOn-Default Option Holders exercising the On-Default Option, it being understood that and (C) the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition1% Option;
(b) all filings, notices and Authorizations required to be obtained by the directors 1% Holder to complete the purchase and sale of the Corporation shall 1% Holder Shares must have authorized and approved this Agreementbeen made, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closinggiven or obtained;
(c) it the completion of the purchase and sale of the 1% Holder Shares will not result in the violation of any Law by the 1% Holder; and
(d) no order or notice will have been made, issued or delivered by any Governmental Entity, seeking to enjoin, restrict or prohibit or enjoining, restricting or prohibiting, on a temporary or permanent basis any of the transactions contemplated by this Article 11 or imposing any temporary or permanent terms or conditions on the transactions contemplated by this Article 11.
(2) The completion of the purchase and sale of the 1% Holder Shares in connection with the exercise of the On-Default Option is subject to the purchase and sale of the 1% Holder Shares not resulting in the violation of any Law, which condition:
(a) is to be fulfilled or performed on or before the On-Default Option Closing Date;
(b) is for the exclusive benefit of the 1% Holder; and
(c) may be waived, in whole or in part, by the 1% Holder in its sole discretion.
(3) If, as a result of a condition expressed in this Section, the purchase and sale of the 1% Holder Shares in connection with the exercise of the On-Default Option cannot be completed on the On-Default Option Closing Date, the purchase and sale of the 1% Holder Shares shall be completed on the case that, and second (2nd) Business Day following the Corporation will deliver to date that the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:condition is subsequently satisfied.
Appears in 1 contract
Sources: Shareholder Agreement
Conditions of Closing. 9.1 The purchase and sale All of the Purchased Securities and obligations of the Closing will be conditional upon and parties under this Agreement are subject to the following conditions being fulfilled at or fulfillment, prior to or on the Time closing date set forth in Section 4 of Closingthis Agreement, which conditions of each of the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing conditions:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances Delivery by ▇▇▇▇▇▇▇ of the appropriate Securities Commissionsfollowing:
(i) Certificates for the SJI Stock described in Section 5 hereof, endorsed in blank; and
(ii) A certificate of ▇▇▇▇▇▇▇ that all representations and warranties made by him contained in Section 9 of this Agreement shall be true on and as of the Exchange closing date set forth in Section 4 of this Agreement as though such representations and the NYSE required to warranties were made at and as of such date, and shall be true on and as of said closing date as though such representations and warranties were made or obtained by the Corporation prior to the Time at and as of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;such date.
(b) the directors Delivery by Belco of the Corporation shall have authorized and approved this Agreement, the issuance following:
(i) Evidence of the Purchased Securitiesfiling of the Certificate of Amendment to Belco's Certificate of Incorporation creating a series of 10,000,000 shares of blank check preferred stock and designating a series consisting of 4,900,000 shares of Series A Preferred Stock, and all matters relating thereto, it being hereby represented by which such Series A Preferred Stock is a component of the Corporation that such authorization and approval will be obtained prior to the Time of ClosingBelco Stock;
(cii) it shall be Evidence of the case that, subsequent filing of the Certificate of Amendment to Belco's Certificate of Incorporation effecting a 3:1 stock split of Belco's issued and outstanding common stock and notification of such action to Belco's shareholders;
(iii) Evidence of the formation of the Belco Subsidiary and the Corporation will deliver to the Underwriters a certificate conclusion of the Corporation and signed on behalf transactions related thereto, all as set forth in Section 6 hereof;
(iv) Delivery of the Corporation by resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as an officer and director of Belco to be effective on the Chief Executive Officer or an executive officer Closing Date;
(v) Delivery of the Corporation and the Chief Financial Officer resignation of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, certifying that:as an officer and director of Belco to be effective on the Closing Date;
(vi) Written consent of the Belco Board of Directors electing ▇.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities and (a) Purchaser’s obligation to consummate the Closing will be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing:
(ai) the Corporation will have made Property being conveyed to Purchaser vacant, in reasonably clean condition and free of all tenancies, occupants and rights of occupancy;
(ii) no title defect existing, other than Permitted Encumbrances, unless waived by Purchaser;
(iii) test runs of tobacco at the Timberlake facility shall show no evidence of genetically modified tobacco above established detection levels using the PCR method of detection, in accordance with the methods of sampling, testing and detection levels set forth in Schedule 7.1(d);
(iv) Seller not being in default of any of its obligations or obtained in breach of any of its covenants, representations or warranties under this Agreement except such default or breach which would:
(1) result in reasonably foreseeable direct and/or consequential damages or losses to Purchaser in an amount, in the necessary filingsaggregate, approvalsless than $100,000.00, consents and acceptances or
(2) not materially interfere with Purchaser’s intended use of the appropriate Securities CommissionsProperty as a tobacco processing, cigarette manufacturing, warehouse and distribution facility;
(v) no order of any court or governmental authority which seeks to restrain, enjoin or otherwise prohibit consummation of the Exchange transactions contemplated by this Agreement shall be in effect. Seller will be given written notice by Purchaser of, and an opportunity to cure (for up to ninety (90) days from the NYSE required date on which Seller receives such written notice, or any extensions thereof as may be agreed to be made or obtained by the Corporation prior to the Time parties), failure of Closing any condition in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill Section 9(a) or any breach or default by Seller under this condition;Agreement.
(b) Seller’s obligation to consummate the directors Closing will be subject to receipt of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased SecuritiesPurchase Price as provided herein, and Purchaser’s execution and delivery of all matters relating thereto, it Ancillary Agreements and Purchaser not being hereby represented by the Corporation that such authorization in default of its representations and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:warranties.
Appears in 1 contract
Conditions of Closing. 9.1 5.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed in all material respects;
(c) the receipt of any consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, and all such approvals being in full force and effect;
(d) there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(e) there shall have been no order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
5.2 If any condition in section 5.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors or the Company to be made comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
5.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall do be true and correct in all that is required, acting reasonably, to assist material respects at the Corporation to fulfill this conditionClosing;
(b) the directors covenants and conditions of the Corporation Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have authorized been performed and approved this Agreement, the issuance of the Purchased Securities, and observed in all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingmaterial respects;
(c) it shall be the case that, receipt of any consents contemplated by this Agreement or otherwise necessary for this Agreement and the Corporation will deliver to the Underwriters a certificate completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(d) addressed there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company or the Property;
(e) the Property being free of all Adverse Interests, unless otherwise disclosed to the Underwriters Purchaser;
(f) the Option Agreement being in good standing;
(g) the Board of Directors of the Company shall have approved the transfer of the Company Shares and dated the Closing Date Company Warrants contemplated in form satisfactory this Agreement, in accordance with the Articles of the Company; and
(h) there shall have been no order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
5.4 If any condition in section 5.3 hereof has not been fulfilled or if any such condition is or becomes impossible to their counselsatisfy, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPother than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, certifying thatthen the Purchaser may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Vendors and the Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Securities Purchase Agreement
Conditions of Closing. 9.1 6.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents representations and acceptances warranties of the appropriate Securities CommissionsPurchaser in this Agreement shall be true and correct in all material respects at the Closing, the Exchange except those representations and the NYSE required to warranties qualified by a materiality qualification which shall be made or obtained by the Corporation prior to the Time of Closing true and correct in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionrespects;
(b) the directors covenants and conditions of the Corporation Purchaser to be performed and observed in this Agreement prior to or at Closing shall have authorized been performed and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingobserved;
(c) it shall be the case that, receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the Corporation will deliver to the Underwriters a certificate completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersCompany, and all such approvals being in full force and effect;
(d) addressed the Purchaser shall have reconstituted its board of directors to consist of nominees of the Underwriters Company, and dated the Closing Date in form satisfactory which are expected to their counselinclude ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLPand Arjan ▇▇▇▇▇▇ ▇▇▇▇▇;
(e) the Purchaser shall have changed its name to “Centr Brands Corp.”, certifying thator such other name as is acceptable to the Company;
(f) the Purchaser shall have completed a private placement of equity securities to arm’s length investors for gross proceeds of not less than $2,000,000 at an issue price of not less than $0.50 per Purchaser Share (or its equivalent) (the “Purchaser Financing”);
(g) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(h) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
6.2 If any condition in section 6.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Vendors or the Company to comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or remedies available to the Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
6.3 The Purchaser shall not be obligated to complete the purchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall be true and correct in all material respects at the Closing, except those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the covenants and conditions of the Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed in all material respects;
(c) the receipt of any Consents necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Purchaser, and all such approvals being in full force and effect, including the approval of the Exchange;
(d) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(e) the assets of the Company being free of all Adverse Interests, unless otherwise agreed by the Purchaser;
(f) the Board of Directors of the Company shall have approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of Incorporation of the Company; and
(g) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
6.4 If any condition in section 6.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 9.1 The purchase and sale This Agreement shall become effective upon the receipt by the Agent, with copies for each Bank, of the Purchased Securities following: (a) an executed original counterpart of this Agreement; (b) certified copies of any amendments to the Partnership Agreement and the Closing will be conditional upon and subject Management Agreement since June 30, 1993; (c) certified copies of all documents relating to the following conditions being fulfilled at or prior to due authorization and execution by the Time Borrower of Closingthis Agreement as the Agent may reasonably request, which conditions including, without limitation, all partnership actions taken by the Corporation covenants to exercise Borrower authorizing (i) the execution and delivery by the Borrower of this Agreement and the other Loan Documents, (ii) its reasonable best efforts to have fulfilled at or prior to performance of all of its agreements and obligations under this Agreement and under the Time of Closing other Loan Documents, and which conditions in paragraphs (c), iii) the borrowings and other transactions contemplated by this Agreement and the other Loan Documents; (d) an incumbency certificate, dated the date hereof, signed by an authorized General Partner, setting forth the names and (e) may be waived in writing in whole specimen signatures of each individual authorized to give notices, sign or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed act on behalf of the Corporation Borrower in connection with the transactions contemplated by this Agreement and the other Loan Documents; (e) certified copies of all documents relating to the General Partner executing this Agreement on behalf of the Borrower as the Agent may reasonably request, including, without limitation, all resolutions or other actions taken by the Chief Executive Officer or an executive officer Borrower authorizing the execution and delivery by the General Partner on behalf of the Corporation Borrower of this Agreement and the Chief Financial Officer other Loan Documents; (f) an incumbency certificate, dated the date hereof, signed by the Secretary or Assistant Secretary of the Corporation (or such officers General Partner acting on behalf of the Corporation as may be acceptable Borrower hereunder, setting forth the names and specimen signatures of each individual authorized to give notices, sign or act on behalf of the Borrower in connection with the transactions contemplated by this Agreement and the other Loan Documents; (g) good standing certificates from each of (i) Bermuda and (ii) Massachusetts with respect to the UnderwritersBorrower and each General Partner; (h) addressed to a duly completed and executed Federal Reserve Form U-1, describing all Margin Stock then held by the Underwriters Borrower in its investment portfolio and dated all Eligible Assets, in the Closing Date in form satisfactory to their counsel, required by such Form U-1; (i) an opinion from Judy ▇. ▇▇▇▇▇▇▇ ▇, ▇▇q., counsel to the Borrower, and Cony▇▇▇, ▇▇ LLP▇ll & ▇ear▇▇▇, certifying that:▇▇ecial Bermuda counsel, substantially in the form of Exhibit E attached hereto, in each case given upon the express instructions of the Borrower (and by its execution of this Agreement the Borrower confirms that it has so instructed such counsel); (j) receipt of the Agent's fee referred to in Section 2.6(a); and (k) such other documents as any Bank shall have requested in order to comply with applicable rules and regulations promulgated by the Federal Reserve Board and other governmental and regulatory authorities.
Appears in 1 contract
Sources: Credit Agreement (FMR Corp)
Conditions of Closing. 9.1 The Underwriter's obligation to purchase and sale of the Purchased Securities and any Offered Shares at the Closing will Time shall be conditional upon and subject to the fulfilment at or before the Closing Time of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(a) the Corporation will Underwriter shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriter may agree, certifying for and on behalf of the Company that:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Final Prospectus (except the Underwriter Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Shares, the Over-Allotment Option and the Broker Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Underwriter shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriter may agree, addressed to the Underwriter with respect to the notice of articles and articles of the Company, all resolutions of the Company's board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Underwriter may reasonably request;
(c) the Company shall have made or and/or obtained the all necessary filings, approvals, permits, consents and acceptances authorizations to or from, as the case may be, the board of directors and shareholders of the appropriate Securities CommissionsCompany, the Exchange Securities Regulators, the TSXV, and the NYSE any other applicable person required to be made or obtained by the Corporation prior Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Time Underwriter, acting reasonably;
(d) the Offered Shares and the Broker Warrant Shares shall have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV;
(e) the Underwriter shall have received favourable legal opinions addressed to the Underwriter, dated the Closing in order Date, from Forooghian + Company Law Corporation, counsel to complete the Offering as herein contemplatedCompany, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the Underwriters shall do all that is requiredextent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company's Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriter and its counsel, acting reasonably, with respect to assist the Corporation following matters:
(i) as to fulfill this conditionthe subsistence of the Company under the laws of the Province of British Columbia and as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Shares, grant the Over-Allotment Option and issue the Broker Securities;
(bii) as to the authorized and issued capital of the Company;
(iii) the directors Company has all requisite corporate power and capacity under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets;
(iv) the execution and delivery of the Corporation shall have authorized Transaction Documents, the performance by the Company of its obligations thereunder, the sale and approved this Agreementissuance of the Offered Shares, the grant of the Over-Allotment Option and the issuance of the Purchased Broker Securities, do not and will not conflict with or result in any breach of the notice of articles and articles of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(v) each of the Transaction Documents have been duly authorized and executed and delivered by the Company, and constitute valid and legally binding obligations of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, liquidation, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and the qualification that the enforceability of rights of indemnity and contribution may be limited by applicable law;
(vi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and the filing thereof with the Securities Regulators, the filing of the Marketing Document with the Securities Regulators and the delivery of each of the preliminary and final U.S. Private Placement Memorandum;
(vii) the Offered Shares, other than the Additional Shares issuable at any Option Closing Time, have been duly and validly issued as fully paid and non-assessable Common Shares in the capital of the Company;
(viii) the Broker Warrants have been duly and validly created and, other than the Broker Warrants issuable at any Option Closing Time, issued;
(ix) the Broker Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Broker Warrants in accordance with the provisions of the Broker Warrant Certificates, the Broker Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares in the capital of the Company;
(x) all necessary corporate action has been taken by the Company to authorize the issuance of the Additional Shares, subject to receipt of payment in full for them, and the issuance of the additional Broker Warrants, and when issued and delivered, the Additional Shares and the additional Broker Warrants will be duly and validly issued by the Company and the Additional Shares will be outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(xi) the rights, privileges, restrictions and conditions attaching to the Offered Shares, the Over-Allotment Option and the Broker Securities conform in all material respects with the description thereof set forth in the Final Prospectus;
(xii) all necessary documents have been filed, all requisite proceedings have been taken and all matters relating theretoapprovals, it being hereby represented permits, consents and authorizations of the Securities Regulators in each of the Qualifying Jurisdictions have been obtained by the Corporation that such authorization Company to qualify the distribution to the public of the Offered Shares in each of the Qualifying Jurisdictions through persons who are registered under Canadian Securities Laws and to qualify the grant of the Over-Allotment Option and the issuance of the Broker Warrants to the Underwriter;
(xiii) the issuance by the Company of the Broker Warrant Shares upon the due exercise of the Broker Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions in connection therewith;
(xiv) the first trade in, or resale of, the Broker Warrant Shares is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a "control distribution" (as defined in National Instrument 45-102 - Resale of Securities);
(xv) the Offered Shares and Broker Warrant Shares have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV; and
(xvi) as to such other matters as the Underwriter's legal counsel may reasonably request prior to the Time of ClosingClosing Time;
(cf) it the Underwriter shall be the case that, and the Corporation will deliver to the Underwriters have received a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) favourable legal opinion addressed to the Underwriters and Underwriter, dated the Closing Date Date, from Forooghian + Company Law Corporation, as to: (i) the incorporation and subsistence of Canam, (ii) the corporate power and capacity of Canam under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Canam and the ownership thereof, in a form satisfactory to their the Underwriter and its counsel, acting reasonably;
(g) the Underwriter shall have received a favourable legal opinion addressed to the Underwriter, dated the Closing Date, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:tax counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriter and its counsel, acting reasonably, to the effect that the statements and opinions concerning tax matters set forth in the Final Prospectus under the heading "Eligibility for Investment" insofar as they purport to describe the provisions of the laws referred to therein are fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and limitations set out under such heading;
(h) if any Offered Shares are offered and sold to U.S. Purchasers pursuant to Schedule "A" attached hereto, the Underwriter shall have received a favourable legal opinion addressed to the Underwriter, dated the Closing Date, from ▇▇▇▇▇ LPC, special United States counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriter and its counsel, acting reasonably, to the effect that no registration of the Offered Shares offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Shares to U.S. Purchasers is made in accordance with Schedule "A" attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Shares;
(i) the Underwriter shall have received a favourable legal opinion addressed to the Underwriter, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriter and its counsel, acting reasonably, as to title to the mineral concessions comprising the ▇▇▇▇▇▇ Property;
(j) the Underwriter shall have received from the Company's Auditors a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(a)(iv);
(k) the Underwriter shall have received executed copies of all the lock-up agreements requested by the Underwriter pursuant to Section 6(l) in form and substance satisfactory to the Underwriter, acting reasonably;
(l) the Underwriter shall have received certificates of good standing or similar certificates with respect to the jurisdiction in which the Company and Canam are existing;
(m) the Underwriter shall have received a certificate from the transfer agent and registrar of the Company as to the issued and outstanding Common Shares as at the close of business on the Business Day prior to the Closing Date; and
(n) the Underwriter shall have received such other documents as the Underwriter or its counsel may reasonably request prior to the Closing Time.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities Units and the Closing will be conditional upon and release of subscription funds for the escrow account are subject to the following conditions being fulfilled at or prior accuracy of the representations and warranties of the parties hereto, to the Time performance by such parties of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior their respective obligations hereunder and to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing further conditions:
(a) At each Closing Time no order suspending the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances effectiveness of the appropriate Securities CommissionsRegistration Statement shall have been issued under the 1933 Act or proceeding therefor initiated or threatened by the SEC, the Exchange and the NYSE required to be made or obtained by CFTC shall have filed the Corporation prior to the Time Prospectus as a Disclosure Document without a finding of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;further deficiencies.
(b) At each Closing Time, the directors Managing Owner shall deliver a certificate to the effect that: (i) no order suspending the effectiveness of the Corporation shall Registration Statement has been issued and no proceedings therefor have authorized been instituted or to the best of their knowledge upon due and approved this Agreementdiligent inquiry threatened by the SEC, the issuance CFTC or other regulatory or self-regulatory body; (ii) the representations and warranties of the Purchased Securities, Managing Owner contained herein are true and correct with the same effect as though expressly made at such Closing Time and in respect of the Registration Statement as in effect at such Closing Time; and (iii) the Managing Owner has performed all matters relating thereto, it being hereby represented by the Corporation that such authorization covenants and approval will agreements herein contained which are required to be obtained performed on their part at or prior to the Time of Closing;such Closing Time.
(c) it The parties hereto shall be have been furnished with such additional information, opinions and documents, including supporting documents relating to parties described in the case that, Prospectus and certificates signed by such parties with regard to information relating to them and included in the Corporation will deliver Prospectus as they may reasonably require for the purpose of enabling them to pass upon the Underwriters a certificate sale of the Corporation Units as herein contemplated and signed on behalf related proceedings, in order to evidence the accuracy or completeness of any of the Corporation representations or warranties or the fulfillment of any of the conditions herein contained; and all actions taken by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:parties hereto
Appears in 1 contract
Sources: Additional Selling Agent Agreement (Campbell Asset Allocation Trust)
Conditions of Closing. 9.1 5.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing, except those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed;
(c) the receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, including the conditional approval of the Exchange for the for the transaction contemplated herein and the listing of the Purchaser Shares on the Exchange following Closing, all in form and content and upon such conditions, if any, acceptable to the Company, and all such approvals being in full force and effect;
(d) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser;
(e) during the Interim Period, there shall have been no Order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate transactions contemplated by this Agreement;
(f) the Purchaser Shares having been voluntarily delisted from the TSXV;
(g) the Purchaser having completed the Purchaser Financing for gross proceeds of not less than $2,000,000 and having sufficient working capital to meet the minimum listing requirements prescribed by the Exchange;
(h) the Purchaser having changed its name to "Blender Bites Limited", or such other name as is acceptable to the Purchaser and the Company;
(i) the current board of directors and management of the Purchaser having been reconstituted to include an equal number of nominees of the Company;
(j) the Purchaser shall not be on the list of defaulting issuers maintained by the Securities CommissionsAuthorities in the Reporting Jurisdictions; and
(k) no Securities Authority, the Exchange and TSXV or any other competent authority, including any other Governmental Authority, shall have issued any order to cease or suspend trading or distribution of any securities of the NYSE required Purchaser or shall have instituted or threatened the institution of any proceedings for that purpose nor shall any notice of investigation that could potentially result in an order to be made cease or obtained by suspend trading or distribution of any securities of the Corporation prior Purchaser have been commenced.
5.2 If any condition in Section 5.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Vendors or the Company to comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser, as provided in Section 7.1(a); or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
5.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall do be true and correct in all that is requiredmaterial respects at the Closing, acting reasonably, to assist the Corporation to fulfill this conditionexcept those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the directors covenants and conditions of the Corporation Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have authorized been performed and approved this Agreement, the issuance of the Purchased Securities, and observed in all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingmaterial respects;
(c) it shall be the case that, receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the Corporation will deliver to the Underwriters a certificate completion of the Corporation and signed on behalf transactions contemplated herein, including the conditional approval of the Corporation by Exchange for the Chief Executive Officer or an executive officer for the transaction contemplated herein and the listing of the Corporation Purchaser Shares on the Exchange following Closing, all in form and the Chief Financial Officer of the Corporation (or content and upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersCompany, and all such approvals being in full force and effect;
(d) addressed during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Underwriters Company;
(e) the Assets of the Company being free of all Adverse Interests, unless otherwise agreed by the Purchaser;
(f) the liabilities of the Company shall not exceed $250,000, excluding the loans described in 3.2(m) and dated costs incurred by the Closing Date Company related to transactions contemplated by this Agreement, which shall not exceed $50,000;
(g) the Purchaser having received a comprehensive business plan and working capital budget for the Company for the twelve months following Closing, as are necessary in form satisfactory to their counsel, accordance with Exchange policies and in connection with the preparation of an Exchange Form 2A Listing Statement;
(h) the Purchaser having received the Company Financial Statements;
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPhaving entered into an escrow arrangement for 5,000,000 Consideration Shares in accordance with the policies of the Exchange;
(j) the Purchaser Shares having been voluntarily delisted from the TSXV;
(k) the Company having completed the Company Financing, certifying thatthere being no more than 10,000,000 Company Warrants outstanding, and the holders of the Company Warrants having agreed to exchange the Company Warrants for the Consideration Warrants;
(l) the Board of Directors of the Company shall have approved the transfer of the Vendors Shares contemplated in this Agreement, in accordance with the Articles of Incorporation of the Company; and
(m) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
5.4 If any condition in Section 5.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Company as provided in Section 7.1(a); or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement (RewardStream Solutions Inc.)
Conditions of Closing. 9.1 The purchase and sale Closing shall not occur until all of the Purchased Securities following terms and conditions for the Closing will be conditional upon and subject to the following conditions being exclusive benefit of FFPL have been fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersand/or performed:
(a) the Corporation will have made or obtained Company having executed:
(i) the necessary filings, approvals, consents Aries Sale and acceptances of Purchase Agreement and the appropriate Securities CommissionsPluto Sale and Purchase Agreement and having satisfied all its completion obligations thereto;
(ii) the Aries Time Charter and the Pluto Time Charter with the Time Charterer;
(iii) the Aries Hypothec, the Exchange Pluto Hypothec, the Aries General Assignment and the NYSE required to be made or obtained by Pluto General Assignment, each in favour of FFPL; and
(iv) the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionVessel Loan;
(b) the directors Company delivering to NGIL all necessary corporate authorities approving the execution of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingdocuments set out in Clause 4.1(a);
(c) it each of PSU and MKA providing documentary evidence satisfactory to NGIL that both PSU and MKA have, or will on the Closing Date have, funds in place to each pay for 50% of the Class B Shares in full;
(d) the Parties finalising and, in the presence of a notary public in Indonesia, executing the amended Articles;
(e) the Parties finalising and submitting:
(i) to BKPM, a final Foreign Investment Application (Model 1/PMA Application) together with annexes and supporting documents, seeking approval of, the proposed activity of the Company and structure of the Shareholders’ investment in the Company; and
(ii) to MOL, the duly executed and notarised amended Articles, together with all supporting documents, for MOL approval to approve the amendments to the Articles;
(f) the Company having obtained each of the following:
(i) the registration of the Aries Vessel and the Pluto Vessel in the name of the Company as evidenced by the Grosse Akte issued by Seacom;
(ii) the registration of the Aries Vessel and the Pluto Vessel under Indonesian flag by Seacom as evidenced in the main register for registration and transfer of title of vessels in Jakarta, Indonesia;
(iii) the SIUPAL Licences being issued by Seacom in the name of the Company as necessary for the commercial operation of the Aries Vessel and the Pluto Vessel in Indonesia;
(iv) the certificate of classification of the Aries Vessel and the Pluto Vessel from the Indonesian Classification Bureau being the Indonesian classification society; and
(v) documentary evidence satisfactory to NGIL that each of the Aries Vessel and the Pluto Vessel is insured on terms and with underwriters and P & I clubs acceptable to NGIL;
(g) confirmation being received in writing by all of the Parties that all approvals, licences and consents of BKPM, MOL, Seacom and any other government or governmental body or regulatory authority which are required to enable the Company to conduct the Business without interruption or inconvenience, have been obtained, issued or granted on terms satisfactory to NGIL;
(h) the covenants, representations and warranties of each of the Company, PSU and MKA contained in Clause 15 shall be the case thattrue and correct, each and the Corporation will deliver every one of which is hereby deemed to the Underwriters be a condition and NGIL shall have received a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date Date, in form satisfactory to their counselcounsel for NGIL, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPsigned under seal by each of the Company and PSU to the effect that such covenants, certifying that:representations and warranties referred to above are true and correct on and as of the Closing Date;
(i) the composition of the Board of Commissioners and the Board of Directors of the Company set forth in Clause 10.2 shall be completed;
(j) the new capital structure of the Company set forth in Clause 2.2 shall be completed; and
(k) no legislation (whether by statute, by-law, regulation or otherwise) shall have been enacted or introduced which, in the opinion of NGIL, adversely affects or may adversely affect the operations and Business of the Company.
Appears in 1 contract
Conditions of Closing. 9.1 The Underwriters' obligation to purchase and sale of the Purchased Securities and any Initial Shares at the Closing will Time shall be conditional upon and subject to the fulfilment at or before the Closing Time of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(a) the Corporation will Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, certifying for and on behalf of the Company that:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Prospectus (except the Underwriters Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Securities, the Over-Allotment Option and the Compensation Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, addressed to the Underwriters with respect to the notice of articles and articles of the Company, all resolutions of the Company's board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Underwriters may reasonably request;
(c) the Company shall have made or and/or obtained the all necessary filings, approvals, permits, consents and acceptances authorizations to or from, as the case may be, the board of directors and shareholders of the appropriate Securities CommissionsCompany, the Exchange and Securities Regulators, the TSXV, the NYSE and any other applicable person required to be made or obtained by the Corporation prior Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Time Underwriters, acting reasonably;
(d) the Offered Securities and the Compensation Warrant Shares shall have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV;
(e) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing in order Date, from Forooghian + Company Law Corporation, counsel to complete the Offering as herein contemplatedCompany, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company's Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters shall do all that is requiredand their counsel, acting reasonably, with respect to assist the Corporation following matters:
(i) as to fulfill this conditionthe incorporation and subsistence of the Company under the laws of the Province of British Columbia and as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Securities, grant the Over-Allotment Option and issue the Compensation Securities;
(bii) as to the authorized and issued capital of the Company;
(iii) the directors Company has all requisite corporate power and capacity under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets as described in the Prospectus;
(iv) the execution and delivery of the Corporation shall have authorized Transaction Documents, the performance by the Company of its obligations thereunder, the sale and approved this Agreementissuance of the Offered Securities, the grant of the Over-Allotment Option and the issuance of the Purchased Compensation Securities, do not and will not conflict with or result in any breach of the notice of articles and articles of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(v) each of the Transaction Documents have been duly authorized and executed and delivered by the Company, and constitute valid and legally binding obligations of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, liquidation, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and the qualification that the enforceability of rights of indemnity and contribution may be limited by applicable law;
(vi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Base Shelf Prospectus and the Prospectus Supplement and the filing thereof with the Securities Regulators, the filing of the Marketing Document with the Securities Regulators and the delivery of the U.S. Private Placement Memorandum;
(vii) the Offered Securities, other than the Over-Allotment Shares issuable at any Option Closing Time, have been duly and validly issued as fully paid and non-assessable Common Shares;
(viii) the Compensation Warrants have been duly and validly created and, other than the Compensation Warrants issuable at any Option Closing Time, issued;
(ix) the Compensation Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Compensation Warrants in accordance with the provisions of the Compensation Warrant Certificates, the Compensation Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(x) all necessary corporate action has been taken by the Company to authorize the issuance of the Over-Allotment Shares, subject to receipt of payment in full for them, and the issuance of the additional Compensation Warrants, and when issued and delivered, the Over-Allotment Shares and the additional Compensation Warrants will be duly and validly issued by the Company and the Over-Allotment Shares will be outstanding as fully paid and non-assessable Common Shares;
(xi) the rights, privileges, restrictions and conditions attaching to the Offered Securities, the Over-Allotment Option and the Compensation Securities conform in all material respects with the description thereof set forth in the Prospectus;
(xii) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits, consents and authorizations of the applicable Securities Regulators in each of the Offering Jurisdictions have been obtained by the Company to qualify the distribution to the public of the Offered Securities in each of the Offering Jurisdictions through persons who are registered under applicable Canadian Securities Laws and to qualify the grant of the Over-Allotment Option and the issuance of the Compensation Warrants to the Underwriters;
(xiii) the issuance by the Company of the Compensation Warrant Shares upon the due exercise of the Compensation Warrants is exempt from, or is not subject to, the prospectus requirements of applicable Canadian Securities Laws in the Offering Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws of the Offering Jurisdictions in connection therewith;
(xiv) the first trade in, or resale of, the Compensation Warrant Shares is exempt from, or is not subject to, the prospectus requirements of applicable Canadian Securities Laws in the Offering Jurisdictions and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a "control distribution" (as defined in National Instrument 45-102 - Resale of Securities);
(xv) the Offered Securities, and all matters relating theretoCompensation Warrant Shares have been conditionally approved for listing and posting for trading on the TSXV, it being hereby represented subject only to satisfaction by the Corporation that Company of certain standard post-closing conditions imposed by the TSXV; and
(xvi) as to such authorization and approval will be obtained other matters as the Underwriters' legal counsel may reasonably request prior to the Time of ClosingClosing Time;
(cf) it shall be the case that, and the Corporation will deliver to the Underwriters shall have received a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable favourable legal opinion addressed to the Underwriters, dated the Closing Date, from Forooghian + Company Law Corporation, as to: (i) addressed the incorporation and subsistence of Canam, Vizsla Royalties and Panuco Royalty, (ii) the corporate power and capacity of Canam, Vizsla Royalties and Panuco Royalty under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Canam, Vizsla Royalties and Panuco Royalty and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(g) the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date in form satisfactory to their counselDate, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:tax counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that the statements and opinions concerning tax matters set forth in the Prospectus Supplement under the headings "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations" insofar as they purport to describe the provisions of the laws referred to therein are fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and limitations set out under such heading;
(h) if any Offered Securities are offered and sold to U.S. Purchasers pursuant to Schedule "A" attached hereto, the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇ LPC, special United States counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that no registration of the Offered Securities offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Securities to U.S. Purchasers is made in accordance with Schedule "A" attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Securities;
(i) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, as to title to the mineral concessions comprising the Panuco Property;
(j) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, with respect to (i) the incorporation and subsistence of Minera Canam and Canam Royalties, (ii) the corporate power and capacity of Minera Canam and Canam Royalties under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Minera Canam and Canam Royalties and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(k) the Underwriters shall have received from the Company's Auditors a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(a)(iv);
(l) the Underwriters shall have received executed copies of all the lock-up agreements requested by the Underwriters pursuant to Section 6(l) in form and substance satisfactory to the Underwriters, acting reasonably;
(m) the Underwriters shall have received certificates of good standing or similar certificates with respect to the jurisdiction in which the Company, Canam, Vizsla Royalties, Panuco Royalty, Minera Canam and Canam Royalties are existing;
(n) the Underwriters shall have received a certificate from the transfer agent and registrar of the Company as to the issued and outstanding Common Shares as at the close of business on the Business Day prior to the Closing Date; and
(o) the Underwriters shall have received such other documents as the Underwriters or its counsel may reasonably request prior to the Closing Time.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale obligation of the Purchased Securities and Receiver to complete the Closing will transactions contemplated by herein, shall be conditional upon and subject to the following satisfaction of certain terms and conditions being fulfilled at or prior to the Time time of Closingthe Closing (the "Closing Time"), which conditions are for the Corporation sole benefit of the Receiver and which may be waived by the Receiver in its sole and absolute discretion, including, without limitation, that:
(i) The representations and warranties of the Purchaser(s) made herein shall be true and correct at the Closing Time with the same force and effect as if made at and as of the Closing Time; the covenants contained herein to exercise its reasonable best efforts to have fulfilled be performed by the Purchaser(s) at or prior to the Closing Time shall have been performed; the Purchaser(s) shall not be in breach of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in any agreement on its part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange contained herein and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation Receiver shall have authorized received certificates confirming the foregoing, signed for and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation Purchaser(s) by a duly authorized officer(s) thereof;
(ii) All documents relating to the due authorization and completion of the transactions contemplated herein and all actions and proceedings taken at or prior to the Closing Time in connection with the performance by the Chief Executive Officer or Purchaser(s) of its obligations hereunder shall be satisfactory to the Receiver and its counsel, and the Receiver shall have received copies of all such documents and evidence that all such actions and proceedings have been taken as it may reasonably request in form and substance satisfactory to the Receiver and its counsel;
(iii) The Receiver shall have received the Approval Order and an executive officer order of the Corporation Court vesting all right, title and interest in and to the Chief Financial Officer Purchased Assets in and to the Purchaser(the "Vesting Order"), and any consents which it deems in its sole and absolute discretion to be necessary or admissible in connection with this agreement. In the event that any of the Corporation (foregoing conditions are not satisfied at the Closing Time, then the Receiver in its sole and absolute discretion may either terminate this agreement without any further consequence or such officers of the Corporation as may be acceptable obligation to the Underwriters) addressed Purchaser(s), or waive compliance with any such condition without prejudice to its right of termination in the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:event of non-fulfillment of any other condition
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale transactions contemplated hereby will be completed at the Closing Time at the offices of the Purchased Securities and Company's counsel in Vancouver, British Columbia. The obligations of the Closing will Purchaser to complete the transactions contemplated hereby shall be conditional upon and subject to the following conditions being fulfilled at or prior to precedent (which are for the Time sole benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:Purchaser):
(a) the Corporation will The Company shall have made or obtained the necessary filings, approvals, consents and acceptances delivered all of the appropriate Securities Commissionsdocuments described in paragraph 5 below, the Exchange in each case in form and the NYSE required to be made or obtained by the Corporation prior substance satisfactory to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is requiredPurchaser, acting reasonably, to assist the Corporation to fulfill this condition;
(b) By no later than July 30, 2003, the directors Company shall have received all shareholder and regulatory approvals which are necessary in order to permit the Company to lawfully complete the transactions contemplated hereby including, without limitation, the approval of the Corporation shall have authorized Company shareholders (by way of an ordinary resolution) and approved this Agreement, the issuance approval of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingStock Exchange;
(c) it shall be Between the case that, date hereof and the Corporation will deliver to Closing, there shall not have been any material adverse change in the Underwriters a certificate business or prospects of the Corporation and signed on behalf Company (including the termination of the Corporation by the Chief Executive Officer employment of Thomas Koll or an executive officer of the Corporation and the Chief Financial Officer of the Corporation George Reznik); and
(or such officers of the Corporation as may be acceptable to the Underwritersd) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, The acqui▇▇▇▇▇▇ ▇▇ ▇he Company of ce▇▇▇▇▇ ▇▇▇▇▇▇ LLPof HiddenMind Technology, certifying that:LLC pursuant to the Asset Purchase Agreement shall be completed before, or concurrently with, the transactions contemplated hereby. The obligations of the Company to complete the transactions contemplated hereby shall be subject to the following conditions precedent (which are for the sole benefit of the Company):
(e) The Purchaser shall have delivered all of the documents described in paragraph 4 below, in each case in form and substance satisfactory to the Company, acting reasonably;
(f) By no later than July 30, 2003, the Company shall have received all shareholder and regulatory approvals which are necessary in order to permit the Company to lawfully complete the transactions contemplated hereby including, without limitation, the approval of the Company shareholders (by way of an ordinary resolution) and the approval of the Stock Exchange; and.
(h) The acquisition by the Company of certain assets of HiddenMind Technology, LLC pursuant to the Asset Purchase Agreement shall be completed before, or concurrently with, the transactions contemplated hereby.
Appears in 1 contract
Conditions of Closing. 9.1 The obligations of each Investor to purchase Notes and sale of consummate the Purchased Securities and transactions contemplated by this Agreement at the Initial Closing will or any Subsequent Closing shall be conditional upon and subject to the fulfillment, on or before the date of such closing (each a "Closing Date"), of each of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersprecedent:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents The sale and acceptances purchase of the appropriate Securities CommissionsNotes, the Exchange execution of this Agreement and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case thateach other Transaction Document, and the Corporation will deliver to the Underwriters a certificate consummation of the Corporation transactions contemplated hereby and signed on behalf thereby shall have been approved by a special committee of the Corporation by the Chief Executive Officer or an executive officer Company established for such purpose and consisting of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counselJeff Green, ▇▇Jeremy Simpson an▇ ▇▇▇▇▇ ▇▇le▇, ▇▇▇ LLP▇▇▇▇ ▇▇prova▇ ▇▇▇▇l have not been revoked or rescinded.
(b) The representations and warranties of the Company contained in this Agreement, each Transaction Document and any other writing delivered by the Company to such Investor pursuant hereto on or prior to the relevant Closing Date shall be true and correct in all material respects on and as of such Closing Date as though made on and as of such Closing Date.
(c) No event of default shall have occurred under the Notes or any other Transaction Document (an "Event of Default"), and no event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default, shall have occurred and be continuing on such Closing Date or would result from the purchase of Notes on such Closing Date.
(d) The purchase of Notes and the consummation of the transactions contemplated hereby on such Closing Date shall not contravene any law, rule, regulation or judicial order, writ or decree applicable to the Company or such Investor and any regulatory or governmental approval necessary for the purchase of Notes by such Investor and/or the consummation of the transactions contemplated hereby shall have been obtained on terms and conditions acceptable to the Company and the Investors.
(e) The Company shall have executed and delivered the Registration Rights Agreement and such agreement shall be in full force and effect.
(f) With respect to each Subsequent Closing, the Investor(s) shall have received a certificate, dated as of the date of such Subsequent Closing and executed by an executive officer of the Company, certifying that:as to the satisfaction of the conditions set forth in paragraphs (b) and (c) of this Section 3.
(g) The Company, Reddline and the Secured Noteholders shall have executed and delivered an agreement in the form attached hereto as Exhibit C (the "Termination Agreement") terminating in full the Secured Note Purchase Agreement and all documents, agreements and instruments executed and delivered in connection therewith and the Secured Note Purchase Agreement and all such documents, agreements and instruments shall be of no further force and effect. In addition, Reddline shall have filed UCC-3 Termination Statements and shall have taken such other action as necessary or appropriate to release all liens granted by the Company to Reddline, as collateral agent, and the Investors pursuant to the Secured Note Purchase Agreement. Finally, all Secured Notes issued to Reddline and the Secured Noteholders pursuant to the Secured Note Purchase Agreement shall have been surrendered to the Company in exchange for a Note or Notes and payment of all accrued and unpaid interest thereon through the date hereof, and such promissory notes shall be of no further force and effect.
Appears in 1 contract
Conditions of Closing. 9.1 11.1 The purchase and sale obligations of the Purchased Securities Agents and the Purchasers to deliver at the Closing will Time executed Subscription Agreements, to complete the purchase of the Units and to perform all other obligations hereunder shall be conditional upon and subject the Agents, in their sole discretion, being satisfied with the results of their due diligence investigations relating to the following conditions being fulfilled Company and its business and upon the fulfilment at or prior to before the Closing Time of Closingthe following conditions, which conditions the Corporation Company covenants to exercise use its reasonable best efforts to have fulfil or cause to be fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersTime:
(a) the Corporation will Company shall have made or obtained taken all necessary corporate action (including board and, if required, shareholder approvals) to authorize and approve the necessary filings, approvals, consents execution and acceptances delivery of the appropriate Securities Commissions, the Exchange Transaction Documents and the NYSE required to be made or obtained by authorization and issuance of the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionSecurities;
(b) the directors of the Corporation Company shall have authorized and approved this Agreement, obtained all requisite third party consents to proceed with the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingOffering;
(c) it the Company shall have obtained and fully complied with all relevant statutory and regulatory requirements required to be the case that, and the Corporation will deliver complied with prior to the Underwriters Closing Time (including, without limitation, the regulatory requirements of the TSX-V) with respect to the issuance of the Securities;
(d) the Company shall have received the conditional approval by the TSX-V to proceed with the Offering and to issue the Securities, subject to the usual filing requirements of the TSX-V;
(e) the Agents shall have received a certificate addressed to the Agents and to the Purchasers, dated as of the Corporation and Closing Date, signed by two officers or directors of the Company as the Agents may accept, certifying on behalf of the Corporation Company to the effect that at the date thereof:
(i) since November 30, 2006, there has not been any event, occurrence or change that has had or could have a Material Adverse Effect;
(ii) the Company does not have any undisclosed contingent liability that is material to the Company on a consolidated basis;
(iii) no event of default under any material agreement or instrument pursuant to which indebtedness of the Company has been created, and no event which with the giving of notice or the passage of time, or both, would constitute an event of default under any such agreement or instrument, has occurred and is continuing and no default under any agreement or instrument to which the Company is a party or subject will occur as a result of the issue, sale and distribution of the Securities, the entry into of the Transaction Documents, or the performance by the Chief Executive Officer Company of its obligations hereunder and thereunder;
(iv) there are no actions, suits, grievances, arbitration or an executive officer alternative dispute resolution processes, inquiries or proceedings, whether on behalf of or against the Company pending or threatened against or affecting the Company at law or in equity, before or by any court or federal, provincial, state, municipal or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way have a Material Adverse Effect or which are material to the Company;
(v) the representations and warranties of the Corporation Company contained herein and in the Subscription Agreements are true and correct and all the terms and conditions relating to the Company contained herein and therein and required to be performed and complied with by the Company by or at the Closing Time have been performed and complied with by the Company; and
(vi) no order, halting, ceasing or suspending trading in securities of the Company or prohibiting the Offering or the issuance or distribution of any Securities of the Company has been issued and no proceedings for such purpose are pending or, to the knowledge of the Company, threatened;
(f) the Agents shall have received an opinion, dated as of the Closing Date, of Canadian counsel to the Company addressed to the Agents and to the Purchasers in a form acceptable to the Agents and Agents’ counsel, acting reasonably;
(g) if there are any Purchasers in the United States, the Agents shall have received an opinion, dated as of the Closing Date, of United States counsel to the Company addressed to the Agents, their counsel and to the Purchasers in a form acceptable to the Agents and Agents’ counsel, acting reasonably;
(h) the Company shall have completed the Non-Brokered Private Placement and provided satisfactory evidence of same to the Agents acting reasonably;
(i) the Agents shall have received copies of the Saxendrift Opinions and the Chief Financial Officer Van Wyk Opinion in respect of title matters relating to the Material Properties, in a form acceptable to the Agents and Agents’ counsel, acting reasonably;
(j) the Agents shall have received such additional documents in respect of the Corporation Offering as they may reasonably request; and
(k) as at the Closing Time, all covenants, agreements and obligations of the Company hereunder and under the Subscription Agreements required to be performed or complied with on or before the Closing Time shall have been so performed or complied with and all conditions required to be complied with by the Company shall have been complied with. In providing their opinions, counsel may, where appropriate, rely on the opinions of local counsel and, with respect to factual matters relevant to such opinions, may rely on certificates of officers of the Corporation as may be acceptable to Company, other certificates issued by regulatory agencies and letters issued by the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:Company’s transfer agent.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase obligations of each of the parties hereunder are subject to the accuracy of the representations and warranties of the other parties hereto, to the performance by such other parties of their respective obligations hereunder and to the following further conditions:
(a) If requested by the Selling Agent, MLAI shall deliver a certificate to the effect that: (i) the representations and warranties of MLAI contained herein are true and correct with the same effect as though expressly made at the Initial Closing Time and in respect of the Memorandum as in effect at the Initial Closing Time; and (ii) MLAI has performed all covenants and agreements herein contained to be performed on its part as of or prior to the Initial Closing Time.
(b) As of the Initial Closing Time, Sidley Austin Brown & Wood LLP, counsel to the Manager, shall deliver ▇▇ ▇▇▇ ▇▇▇ par▇▇▇▇ hereto its opinion, in form and substance satisfactory to each of the parties hereto.
(c) The parties hereto shall have been furnished with such additional information, opinions, certificates and documents, including supporting documents relating to parties described in the Memorandum and letters of representation signed by such parties with regard to information relating to them and included in the Memorandum as they may reasonably require for the purpose of enabling them to pass upon the sale of the Purchased Securities Units as herein contemplated and related proceedings, in order to evidence the accuracy or completeness of any of the representations or warranties or the fulfillment of any of the conditions herein contained; and all actions taken by the parties hereto in connection with the sale of the Units as herein contemplated shall be reasonably satisfactory in form and substance to Sidley Austin Brown & Wood LLP.
(▇) As of each Additional Closing Time, the parties hereto shall have been furnished with such information, opinions and certified documents as the Manager and the Closing will Selling Agent may deem to be conditional upon necessary or appropriate. If any of the conditions specified in this Section 5 shall not have been fulfilled when and subject as required by this Agreement to be fulfilled, this Agreement and all obligations hereunder may be canceled by any party hereto by notifying the following conditions being fulfilled other parties hereto of such cancellation in writing or by telegram at any time at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Initial Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased SecuritiesTime, and all matters relating thereto, it being hereby represented by the Corporation that any such authorization and approval will be obtained prior to the Time of Closing;
(c) it cancellation or termination shall be the case that, and the Corporation will deliver without liability of any party to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation any other party except as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date otherwise provided in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:Section 6.
Appears in 1 contract
Sources: Selling Agreement (ML APM Global Commodity FuturesAccess LLC)
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities and the Closing will be conditional upon and Units is subject to the following conditions being fulfilled at or prior accuracy of the representations and warranties of the parties hereto, to the Time performance by such parties of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior their respective obligations hereunder and to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing further conditions:
(a) The Registration Statement shall remain effective and at each Closing Time no order suspending the Corporation will effectiveness thereof shall have made been issued under the 1933 Act or obtained proceeding therefor initiated or threatened by the necessary filingsSEC, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required NFA shall have accepted the Prospectus as a Disclosure Document pursuant to be made or obtained by the Corporation prior to the Time CFTC Regulations and NFA Rules without a finding of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;further deficiencies.
(b) Upon request, the directors General Partner shall deliver a certificate to the effect that: (i) no order suspending the effectiveness of the Corporation shall Registration Statement has been issued and no proceedings therefor have authorized been instituted or to the best of its knowledge upon due and approved this Agreementdiligent inquiry threatened by the SEC, the issuance CFTC or other regulatory or self-regulatory body; (ii) the representations and warranties of the Purchased Securities, General Partner contained herein are true and correct with the same effect as though expressly made at such Closing Time and in respect of the Registration Statement as in effect at such Closing Time; and (iii) the General Partner has performed all matters relating thereto, it being hereby represented by the Corporation that such authorization covenants and approval will agreements herein contained which are required to be obtained performed on their part at or prior to the Time of Closing;such Closing Time.
(c) it Executed copies of the Limited Partnership Agreement, any Additional Selling Agent Agreements and this Agreement shall be delivered to all parties.
(d) The parties hereto shall have been furnished with such additional information, opinions and documents, including supporting documents relating to parties described in the case that, Prospectus and certificates signed by such parties with regard to information relating to them and included in the Corporation will deliver Prospectus as they may reasonably require for the purpose of enabling them to pass upon the Underwriters a certificate sale of the Corporation Units as herein contemplated and signed on behalf related proceedings, in order to evidence the accuracy or completeness of any of the Corporation representations or warranties or the fulfillment of any of the conditions herein contained; and all actions taken by the Chief Executive Officer or an executive officer parties hereto in connection with the sale of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation Units as may herein contemplated shall be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date reasonably satisfactory in form satisfactory and substance to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Bird LLP, certifying that:counsel for the General Partner and to the counsel for the Selling Agent. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement to be fulfilled prior to a Closing Time, this Agreement and all obligations hereunder may be cancelled by any party hereto by notifying the other parties hereto of such cancellation in writing or by fax at any time at or prior to such Closing Time, and any such cancellation or termination shall be without liability of any party to any other party other than in respect of Units already sold and except as otherwise provided in Sections 6 and 8 of this Agreement.
Appears in 1 contract
Sources: Selling Agreement (S&p Managed Futures Index Fund Lp)
Conditions of Closing. 9.1 The purchase and sale obligations of each of the Purchased Securities and the Closing will be conditional upon and parties hereunder are subject to the following conditions being fulfilled at or prior accuracy of the representations and warranties of the other parties hereto, to the Time performance by such other parties of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior their respective obligations hereunder and to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing further conditions:
(a) At each Subsequent Closing Time no order suspending the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances effectiveness of the appropriate Securities Commissions, Registration Statement shall have been issued under the Exchange and the NYSE required to be made 1933 Act or obtained proceeding therefor initiated or threatened by the Corporation prior SEC and no objection to the Time of Closing in order to complete content thereof shall have been expressed or threatened by the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;CFTC or NFA.
(b) Upon the directors request of any party hereto, the parties hereto shall have been furnished with such information, opinions and documents (including the opinions, certificates and other documents described in Section 8 of the Corporation shall have authorized Selling Agreement dated as of April 3, 1997 among the Trust, the Managing Owner, JWH, the Futures Broker (acting in its capacity as the futures broker and approved the lead selling agent) and CISFS which is superseded by this Agreement), including supporting documents relating to parties described in the issuance Prospectus and certificates signed by such parties with regard to information relating to them and included in the Prospectus as they may reasonably require for the purpose of enabling them to pass upon the sale of the Purchased SecuritiesUnits as herein contemplated and related proceedings, in order to evidence the accuracy or completeness of any of the representations or warranties or the fulfillment of any of the conditions herein contained; and all matters relating thereto, it being hereby represented actions taken by the Corporation that such authorization parties hereto in connection with the sale of the Units as herein contemplated shall be reasonably satisfactory in form and approval will be obtained prior substance to counsel to the Time of Closing;parties hereto.
(c) it The representations and warranties set forth herein shall be the case that, and the Corporation will deliver to the Underwriters a certificate restated as of each Subsequent Closing Time as if made as of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:date thereof.
Appears in 1 contract
Sources: Selling Agreement (JWH Global Trust)
Conditions of Closing. 9.1 The for the Benefit of the Buyer Closing is subject to the following conditions, which are for the exclusive benefit of the Buyer and which are to be performed or complied with at or prior to Closing:
(a) each of (i) the Fundamental Warranties given in favour of the Buyer pursuant to this Agreement; and (ii) the Warranties under paragraph 30 of Part 2 of Schedule 2 (if so given in favour of the Buyer on the Closing Date), shall be true and correct in all respects on the Closing Date and the Seller shall have executed and delivered to the Buyer a certificate confirming that the Fundamental Warranties in this Agreement and the Warranties under paragraph 30 of Part 2 of Schedule 2 are given on that basis;
(b) the Seller shall have performed, fulfilled and complied, and shall have caused the Group Entities to perform, fulfil and comply, with all of the obligations, covenants and conditions of this Agreement to be performed, fulfilled or complied with by the Seller and the Group Entities, as applicable, at or prior to the Closing Date and the Seller will have executed and delivered to the Buyer a certificate to that effect;
(c) the Seller shall deliver to the Buyer within 5 Business Days before Closing its balance sheet (prepared on a reasonable basis to assess solvency under s123 of the Insolvency Act 1986) evidencing its solvency and compliance with paragraph 4 of the Fundamental Warranties as at Closing;
(d) no written notice having been received by the Parties of any legal or regulatory action or proceeding being pending or threatened by any Governmental Authority to enjoin, restrict or prohibit the purchase and sale of the Purchased Securities and Shares, the Closing will be conditional upon and subject to transfer of the following conditions being fulfilled at Residual Intercompany Loans or prior to transfer of the Time Loan Notes contemplated hereby or in the reasonable opinion of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to Buyer (supported by Queens Counsel in the Time form of Closing and which conditions in paragraphs (can opinion from the Queens Counsel), (d) due to changes in law after the date of this Agreement, subsequent amendments to this Agreement or subsequent disclosures by the Seller, Closing would amount to a breach of the Proceeds of Crime Act and consent or deemed consent would not be forthcoming from the National Crime Agency;
(e) there shall be no injunction in effect against Closing entered by a court of competent jurisdiction;
(f) the Seller shall have delivered all closing deliverables set out in Clause 6.4; and
(g) the Buyer shall have:
(i) secured unconditional funding of CAD $45,000,000 from SAF and agreed the terms of the SAF Facility Deeds of Novation with SAF and the Seller (in each case on terms which are acceptable to the Buyer in its absolute discretion which shall include without limitation:
A. the satisfaction of all conditions precedent;
B. the release of the Seller of its liabilities, and security granted, to SAF under existing credit arrangements of the Seller Group with SAF; and
C. consent from SAF to this Agreement and the matters contemplated under this Agreement (including the release of the Purchased Shares, the Residual Intercompany Loans and Loan Notes from any security granted over them to SAF by the Seller Group and the release of the Group from all and any of its liabilities to SAF in relation to the Seller Group (other than arising under the SAF Facility Deeds of Novation));
(ii) received consent from the Seller’s Guarantors Banks in respect of the matters contemplated in this Agreement;
(iii) received confirmation from the Seller’s Guarantors Banks that the Group has not given any guarantees to them for the benefit the Seller Group and/or that such any such guarantees shall be released by the relevant senior lenders on Closing; for the purposes of the transaction of sale and purchase of the Purchased Shares, the Residual Intercompany Loans and Loan Notes contemplated in this Ag reement; and
(h) the Buyer shall have received written consent in a form reasonably satisfactory to SAF, procured by the Seller, from (i) the insurer under the Basil W&I Policy in respect of (a) the assignment of the Basil W&I Policy to the Buyer and any Lender; and (b) the assignment of the rights under the Basil SPA pursuant to Clause 12.7(c)(i) of this Agreement to the Buyer and any Lender; and (ii) the Sellers (as defined under the Basil SPA) other than the Former Management Sellers (being the Management Sellers (as defined under the Basil SPA) whose consents are to be given under the Former Management Sellers’ Settlement Deed) to the assignment pursuant to Clause 12.7(c)(i) of this Agreement to the Buyer and any Lender pursuant to Clause 11.7 of the Basil SPA. Any such condition may be waived in writing in whole or in part by the Underwriters:
(aBuyer without prejudice to any claims it may have for breach of covenant or warranty hereunder, other than the condition at Clause 6.2(h) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to which may only be made or obtained waived by the Corporation Buyer with the prior to the Time written consent of Closing SAF (in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:SAF’s absolute discretion).
Appears in 1 contract
Conditions of Closing. 9.1 7.1 The purchase Vendors and the Company shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Vendors:
(a) the representations and warranties of the Purchaser in this Agreement shall be conditional upon true and subject correct in all material respects at the Closing;
(b) the covenants and conditions of the Purchaser to the following conditions being fulfilled at or be performed and observed in this Agreement prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to or at Closing shall have fulfilled at or prior to the Time of Closing been performed and which conditions observed in paragraphs all material respects;
(c)) the receipt of the Exchange Approval and any other consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, and all such approvals being in full force and effect;
(d) and the Financing shall have been completed or if completed in escrow pending the Closing, then all conditions necessary to release such escrow shall have been satisfied (other than the completion of the Transaction);
(e) may there shall have been no event or change that has had or would be waived reasonably likely to have a Material Adverse Effect on the Purchaser; and
(f) there shall have been no order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
7.2 If any condition in writing in whole Section 7.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Vendors or the Company to comply with their obligations under this Agreement, then the Vendors or the Company may, without limiting any rights or remedies available to the Vendors at law or in part equity, either:
(a) terminate this Agreement by notice to the UnderwritersPurchaser; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
7.3 The Purchaser shall not be obligated to complete the purchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents representations and acceptances warranties of the appropriate Securities Commissions, the Exchange Vendors and the NYSE required to Company in this Agreement shall be made or obtained by true and correct in all material respects at the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionClosing;
(b) the directors delivery of the Corporation shall have authorized Financial Statements from the Company to the Purchaser, and approved this Agreement, should the issuance Financial Statements be considered by the TSXV to be insufficient for the purposes of the Purchased Securitiescompletion of the Transaction and the receipt of Exchange Approval, such financial statements prepared in accordance with generally accepted accounting principles as is required under applicable Securities Laws and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior required in order to the Time of Closingreceive Exchange Approval;
(c) it shall be the case that, and delivery of the Corporation will deliver Technical Report by the Company to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or Purchaser, in such officers of the Corporation form as may be acceptable to the UnderwritersPurchaser, acting reasonably;
(d) addressed the covenants and conditions of the Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed in all material respects;
(e) the receipt of the Exchange Approval and any other consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Underwriters Purchaser, and dated all such approvals being in full force and effect;
(f) the Closing Date receipt of the fully executed Amending Agreement, on the terms outlined in Section
2.4 herein, in such form satisfactory as acceptable to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the Purchaser at its sole discretion;
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 9.1 5.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless, at the following conditions being fulfilled at or prior to the Time of Acquisition Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances each of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplatedconditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Vendors:
(a) the representations and warranties of the Purchaser in Section 4.3 of this Agreement that are qualified by materiality or Material Adverse Effect will be true and accurate at the Acquisition Closing Date as if made as of the Acquisition Closing Date, and each of the other representations and warranties of the Purchaser in Section 4.3 of this Agreement will be true and accurate in all material respects at the Acquisition Closing Date as if made as of the Acquisition Closing Date (except, in each case, for any representations and warranties made as at a specified date, the accuracy of which will be determined as of that specified date instead of the Acquisition Closing Date);
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at the Acquisition Closing shall do have been performed and observed in all material respects;
(c) the receipt of any approvals or consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, and all such approvals being in full force and effect;
(d) there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser;
(e) there shall have been no order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement; and
(f) the Purchaser shall have issued an aggregate of 26,250 Purchaser Shares to 1271556 B.C. Ltd. on the Acquisition Closing Date concurrently with the Acquisition Closing.
5.2 If any condition in Section 5.1 hereof has not been fulfilled (subject to the cure period set out in Subsection 7.1(c) hereof) or if any such condition is requiredor becomes impossible to satisfy, acting reasonablyother than as a result of the failure of either of the Vendors or the Company to comply with their respective obligations under this Agreement, then the Company (on behalf of the Vendors) may, without limiting any rights or remedies available to assist the Corporation Vendors at law or in equity, either:
(a) terminate this Agreement by notice to fulfill the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
5.3 The Purchaser shall not be obligated to complete the purchase of the Purchased Share pursuant to this conditionAgreement and the other transactions contemplated herein, unless, at the Acquisition Closing, each of the conditions listed below is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors as set out in Section 4.1 of this Agreement that are qualified by materiality or Material Adverse Effect will be true and accurate at the Acquisition Closing Date as if made as of the Acquisition Closing Date, and each of the other representations and warranties of the Vendors in Section 4.1 of this Agreement will be true and accurate in all material respects at the Acquisition Closing Date as if made as of the Acquisition Closing Date (except, in each case, for any representations and warranties made as at a specified date, the accuracy of which will be determined as of that specified date instead of the Acquisition Closing Date);
(b) the directors representations and warranties of the Corporation shall have authorized Company as set out in Section 4.2 of this Agreement that are qualified by materiality or Material Adverse Effect will be true and approved accurate at the Acquisition Closing Date as if made as of the Acquisition Closing Date, and each of the other representations and warranties of the Company in Section 4.2 of this AgreementAgreement will be true and accurate in all material respects at the Acquisition Closing Date as if made as of the Acquisition Closing Date (except, in each case, for any representations and warranties made as at a specified date, the issuance accuracy of which will be determined as of that specified date instead of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingAcquisition Closing Date);
(c) it shall be the case that, covenants and conditions of the Vendors and the Corporation will deliver Company to be performed and observed in this Agreement prior to or at Acquisition Closing shall have been performed and observed in all material respects;
(d) the Underwriters a certificate receipt of any approvals or consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(e) addressed there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(f) the board of directors of the Company shall have approved the transfer of the Purchased Share contemplated in this Agreement, in accordance with the constating documents of the Company; and
(g) there shall have been no order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
5.4 If any condition in Section 5.3 hereof has not been fulfilled (subject to the Underwriters and dated cure period set out in Subsection 7.1(d) hereof) or if any such condition is or becomes impossible to satisfy, other than as a result of the Closing Date failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Purchaser at law or in form satisfactory equity, either:
(a) terminate this Agreement by notice to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 9.1 7.1 The obligations of the several Underwriters to purchase and sale of pay for the Purchased Securities and Notes, as provided herein on the Closing Date will be conditional upon and subject to the accuracy of the representations and warranties on the part of the Corporation set forth in Section 6.1 hereof as of each Representation Date, as though then made, and to each of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d), (e), (f), (g), (h) and (ei) may be waived in writing in whole or in part by the Underwriters:
Representatives: (a) the Registration Statement shall have become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or be pending or threatened by the SEC or any Canadian Securities Regulator, any request on the part of the SEC for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters and the Corporation will shall not have received from the SEC any notice objecting to use of the registration statement under Form F-10 or the Canadian Base Prospectus, as applicable. The Preliminary Prospectus and the Prospectus shall have been filed with the SEC and the OSC, as applicable, and the Corporation shall have made or obtained the all other necessary filings, approvals, consents and acceptances of the OSC and the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
; (b) the directors of the Corporation shall have authorized and approved this Agreement, the Indenture, the issuance of the Purchased SecuritiesNotes, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
; (c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the UnderwritersRepresentatives) addressed to the Underwriters and dated the Closing Date Date, in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPthe Representatives, certifying that:: (i) the Prospectus is true and correct in all material respects and contains no misrepresentation; (ii) no Material Adverse Change has occurred and no transaction out of the ordinary course of business and of a nature material to the Corporation has been entered into or is pending since the date of the Prospectus;
Appears in 1 contract
Sources: Underwriting Agreement (Algonquin Power & Utilities Corp.)
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities Offered Shares and the Closing will (as hereinafter defined) shall be conditional upon and subject to the following conditions, which conditions being fulfilled at shall be satisfied on or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersDate:
(a) the Corporation will Agent shall have made or obtained the necessary filings, approvals, consents received and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreementaccepted subscriptions for the Offered Shares for aggregate gross proceeds of a minimum of $8,000,000; (b) a receipt for the Canadian Prospectus shall have been issued on or before July 14, 1998 in the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
Qualifying Jurisdictions; (c) it the Corporation shall take, or cause to be taken, all steps and proceedings that may be requisite under Canadian Securities Laws to qualify the Subject Securities for distribution (or distribution to the public, as the case thatmay be) in the Qualifying Jurisdictions through registrants registered under Canadian Securities Laws who have complied with the relevant provisions of the Canadian Securities Laws; (d) the Registration Statement shall have been declared effective by the SEC and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof shall have been issued and no proceeding for that purpose shall have been instituted or, and the Corporation will deliver to the Underwriters knowledge of the Corporation, threatened by the SEC; and all requests for information on the part of the SEC shall have been complied with; (e) the Agent having received a certificate of the Corporation and dated the Closing Date signed on behalf by each of the Corporation by the President and Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation or by such other officers acceptable to the Agent certifying as to certain matters reasonably requested by the Agent including certification that: (i) the Corporation has complied, in all material respects, with all covenants and satisfied all terms and conditions of this Agreement on its part to be complied with and satisfied up to the Time of Closing; (ii) all of the representations and warranties contained in this Agreement are true and correct as of the Time of Closing with the same force and effect as if made at and as of the Time of Closing; (iii)since the date hereof, there has been no material adverse change (actual, proposed or such officers prospective, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation, the Subsidiaries and, to the best of the knowledge of the Corporation, the Investees; (iv) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation as may be acceptable (including the Subject Securities) has been issued and no proceedings for such purposes are pending, or, to the Underwritersknowledge of such officers, contemplated or threatened; and (v) addressed no stop order suspending effectiveness of the Registration Statement or any post-effective amendment thereof has been issued and no proceedings therefor have been initiated or to the Underwriters and dated knowledge of such officers, threatened by the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:SEC;
Appears in 1 contract
Sources: Agency Agreement (CVF Corp)
Conditions of Closing. 9.1 (1) The purchase Closing of the sales of Offered Securities to the Subscriber is conditional upon and subject to:
(a) the Company having obtained all necessary approvals and consents for the Offering, including without limitation the conditional approval of the TSXV and approval of the Board;
(b) the issue and sale of the Purchased Offered Securities being exempt from the requirement to file a prospectus and the requirement to deliver an offering memorandum under applicable Laws relating to the sale of the Offering Securities; and
(c) the Subscriber shall have executed Exhibit A and Exhibit B to this Agreement.
(2) The Subscriber’s obligations to purchase the Offered Securities at the Closing will Time shall be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closingconditions, which conditions are for the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to sole benefit of the Time of Closing Subscriber and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersSubscriber, in its sole discretion:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange Company and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters Subscriber shall do all that is required, acting reasonably, to assist the Corporation to fulfill have entered into this conditionAgreement;
(b) the directors Company shall have filed and received notice of effectiveness of the Corporation shall have authorized and approved this Agreement, Certificate of Designations from the issuance Delaware Secretary of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingState;
(c) it the Subscriber shall be have received at the case that, and the Corporation will deliver to the Underwriters Closing Time: (i) a stock certificate of the Corporation Company for 2,000,000 Common Shares; (ii) stock certificate of the Company for 5,537,313 Class A Common Shares; and (iii) executed Warrant certificates;
(d) the Company shall have appointed to the Board, effective immediately following the Closing Time, as directors, two nominees designated by the Subscriber and entered into and executed an Indemnification Agreement with each such nominee;
(e) the Company shall have appointed to the Board one observer designated by the Subscriber;
(f) the Company and the Subscriber shall have entered into the Nomination Rights Agreement;
(g) the Company and the Subscriber shall have entered into the Registration Rights Agreement;
(h) ▇▇ ▇▇▇▇▇ shall have transferred his ownership interest in the trademark “Global Crossing Airlines” to the Company on terms and conditions acceptable to the Subscriber;
(i) the Subscriber shall have received at the Closing Time an undertaking dated the Closing Date, signed by the appropriate officers of the Company, addressed to the Subscriber, with respect to the employment agreements referred in Section 3(c) of this Agreement;
(j) the Subscriber shall have received at the Closing Time certificates dated the Closing Date, signed by the appropriate officers of the Company, addressed to the Subscriber and its counsel, with respect to the certificate of incorporation and by-laws of the Company, the Certificate of Designations, all resolutions of the Board and other corporate action relating to this Agreement and the sale of the Offered Securities, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Subscriber may reasonably request;
(k) the Subscriber shall have received at the Closing Time a certificate or certificates dated the Closing Date and signed on behalf of the Corporation Company by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (Company or such officers any other officer acceptable to the Subscriber addressed to the Subscriber certifying, to the best of the Corporation information, knowledge and belief of each person so signing, after having made due inquiry that, except as disclosed in the Public Disclosure Documents:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Offered Securities or any other securities of the Company has been issued or made by any Governmental Body and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, contemplated or threatened by any Governmental Body;
(ii) the Company has complied in all material respects with all the terms and conditions of this Agreement on its part to be complied with at or prior to the Closing Time; and
(iii) the representations and warranties of the Company contained in this Agreement are true and correct, in all material respects, as of the Closing Date with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby.
(l) all consents, approvals, permits, authorization or filings as may be acceptable required by any Governmental Authority, or any other third party necessary to complete the sale of the Offered Securities as contemplated herein shall have been made or obtained;
(m) the Common Shares shall be listed and posted for trading on the TSXV at the opening of trading on the Closing Date; and
(n) each of the representations and warranties of the Company contained in this Agreement shall be true and correct, in all material respects, as of the Closing Time, to the Underwriters) addressed satisfaction of the Subscriber, acting reasonably, and the Company shall have fulfilled each of the covenants contained in this Agreement to the Underwriters satisfaction of the Subscriber. If the Company fails to satisfy any condition described in this Section 6(2) by May 7, 2021, unless waived by the Subscriber, the Subscriber may terminate this Agreement and dated the Closing Date in form satisfactory transactions contemplated hereby effective immediately upon delivery of written notice thereof to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Global Crossing Airlines Group Inc.)
Conditions of Closing. 9.1 The purchase and sale following are conditions precedent to the obligation of the Purchased Securities and Agent to complete the Closing will be conditional upon and subject of the Purchasers to purchase the following conditions being fulfilled at or prior to the Time of ClosingOffered Securities, which conditions the Corporation hereby covenants and agrees to exercise its use commercially reasonable best best-efforts thereof to have fulfilled at or prior to fulfil within the Time of Closing time set out herein therefor, and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersAgent:
(ai) the representations and warranties of the Corporation in this Agreement and any certificate of the Corporation delivered hereunder are true and correct, except where such representation or warranty makes reference to a certain date, then such representation or warranty is true and correct as of such date;
(ii) the Corporation will have made or obtained the necessary filingscomplied with all covenants, approvalsand satisfied all terms and conditions, consents and acceptances of the appropriate Securities Commissionscontained in this Agreement, the Exchange Subscription Agreements and the NYSE required Registration Rights Agreement on its part to be made complied with or obtained by the Corporation satisfied at or prior to the Time Closing Time;
(iii) no order, ruling or determination having the effect of Closing suspending the sale or ceasing the trading in order any securities of the Corporation, or prohibiting the issue and sale of the Offered Securities or any of the Corporation’s issued securities, has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or threatened by any Governmental Authority;
(iv) since August 31, 2022, there has been no material adverse change (actual or proposed, whether financial or otherwise) in the business, affairs, condition, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation;
(v) the Corporation shall have received all necessary approvals and consents, including all necessary regulatory approvals and consents required for the completion of the transactions contemplated by this Agreement, all in a form satisfactory to complete the Offering as herein contemplatedAgent;
(vi) notification of the listing of the Common Shares issuable upon conversion of the Preferred Shares and the Warrant Shares issuable upon due exercise of the Warrants in accordance with their terms on the Nasdaq shall have been made to the Nasdaq, it being understood that without objection by the Underwriters Nasdaq;
(vii) the Agent shall do all that is requiredhave received the opinions, certificates and documents set forth in Section 4(a) to be delivered to the Agent;
(viii) the Agent shall, in its sole discretion, acting reasonably, be satisfied with its due diligence review and investigations with respect to assist the Corporation to fulfill this business, assets, financial condition, affairs and prospects of the Corporation;
(bix) the directors of Corporation will have entered into the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior Warrant Certificates in a form satisfactory to the Time of ClosingAgent, acting reasonably;
(cx) it the Agent shall be have received the case that, certificates evidencing the Preferred Shares comprised in the Securities and the Corporation will deliver to Warrant Certificates; and
(xi) the Underwriters a certificate of Agent shall not have previously terminated this Agreement in accordance with the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:terms hereof.
Appears in 1 contract
Conditions of Closing. 9.1 6.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing, except those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed;
(c) the receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Company, and all such approvals being in full force and effect;
(d) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(e) during the Interim Period, there shall have been no Order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
6.2 If any condition in section 6.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors or the Company to be made comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
6.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall do be true and correct in all that is requiredmaterial respects at the Closing, acting reasonably, to assist the Corporation to fulfill this conditionexcept those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the directors covenants and conditions of the Corporation Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have authorized been performed and approved this Agreement, the issuance of the Purchased Securities, and observed in all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingmaterial respects;
(c) it shall be the case that, receipt of any Consents necessary for this Agreement and the Corporation will deliver to the Underwriters a certificate completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(d) addressed during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(e) the Board of Directors of the Company shall have approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of the Company; and
(f) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
6.4 If any condition in section 6.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Underwriters and dated Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Closing Date Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 9.1 6.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing, except those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed;
(c) the receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Company, and all such approvals being in full force and effect;
(d) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(e) during the Interim Period, there shall have been no Order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
6.2 If any condition in section 6.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors or the Company to be made comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
6.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall do be true and correct in all that is requiredmaterial respects at the Closing, acting reasonably, to assist the Corporation to fulfill this conditionexcept those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the directors covenants and conditions of the Corporation Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have authorized been performed and approved this Agreement, the issuance of the Purchased Securities, and observed in all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingmaterial respects;
(c) it all outstanding securities of the Company convertible into Company Shares shall be have been cancelled, including the case thatVendors Warrants, and the Corporation will deliver to Company shall not have any convertible securities outstanding at Closing;
(d) the Underwriters a certificate receipt of any Consents necessary for this Agreement and the completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(e) addressed during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(f) the Board of Directors of the Company shall have approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of the Company;
(g) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement;
(h) the Purchaser shall be satisfied in its sole discretion with the results of its due diligence review of the Company, its businesse and affairs and the Patent Assets; and
(i) the Company shall have a minimum of CDN$185,000 in cash on hand, after deducting the expenses of its legal counsel incurred in connection with the completion of the transactions contemplated herein.
6.4 If any condition in section 6.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Underwriters and dated Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Closing Date Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Purchase Agreement
Conditions of Closing. 9.1 6.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing, except those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed;
(c) the receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Company, and all such approvals being in full force and effect;
(d) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(e) during the Interim Period, there shall have been no Order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
6.2 If any condition in section 6.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors or the Company to be made comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
6.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall do be true and correct in all that is requiredmaterial respects at the Closing, acting reasonably, to assist the Corporation to fulfill this conditionexcept those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the directors all outstanding securities of the Corporation Company convertible into Company Shares shall have authorized and approved this Agreement, the issuance of the Purchased Securitiesbeen cancelled, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Company shall not have any convertible securities outstanding at Closing;
(c) it shall be the case that, covenants and conditions of the Vendors and the Corporation will deliver Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed in all material respects;
(d) the Underwriters a certificate receipt of any Consents necessary for this Agreement and the completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(e) addressed during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Underwriters and dated Company;
(f) the Closing Date in form satisfactory to their counsel, ▇▇▇▇Company shall have entered into an employment agreement with ▇▇▇ ▇▇▇▇▇▇, on terms acceptable to the Purchaser;
(g) the Company shall have been released from all obligations and liabilities due and owing to ▇▇▇▇▇▇ LLPFinancial Inc. pursuant to the terms of an engagement letter entered into on January 1, certifying that2020;
(h) the Board of Directors of the Company shall have approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of the Company; and
(i) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
6.4 If any condition in section 6.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities and the Closing will 8.1 Newco shall not be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order obligated to complete the Offering as herein contemplatedpurchase of the Properties pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 8.1 has been satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of Newco:
(a) The representations and warranties of Crosshair and Paragon in this Agreement shall do be true and correct in all that is required, acting reasonably, to assist material respects at the Corporation to fulfill this conditionClosing;
(b) the directors of the Corporation Paragon and Crosshair shall have authorized performed and approved complied in all material respects with the terms and conditions in this Agreement on each of its part to be performed or complied with at or before the Closing and shall have executed and delivered or caused to have been executed and delivered to Newco at the Closing all the documents contemplated in sections 7.2 and 7.3 and elsewhere in this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) During the Interim Period, there shall have been no Material Adverse Change;
(d) During the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement or the Arrangement;
(e) Crosshair and Newco shall have entered into a purchase and sale agreement for Crosshair’s interest in the Properties and any conditions to the performance of that agreement shall have been satisfied or waived;
(f) The Arrangement shall have been approved by the securityholders of Crosshair at a duly called meeting of securityholders in accordance with applicable laws;
(g) The interim order and the final order of the Supreme Court of British Columbia in respect of the Arrangement shall each have been obtained and shall not have been set aside;
(h) The Pubco Shares shall have been duly and validly transferred to Newco as part of the Arrangement; and
(i) All regulatory approvals and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including:
(i) the approval of any stock exchange that the securities of any of the Parties are listed on or to which an application for listing has been made; and
(ii) any consents required from any of the parties to the Underlying Agreements.
8.2 If any condition in Section 8.1 has not been fulfilled at or before the Closing or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of Newco to comply with its obligations under this Agreement, then Newco in its sole discretion may, without limiting any rights or remedies available to Newco at law or in equity, either:
(a) terminate this Agreement by notice to Paragon and Crosshair; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other condition.
8.3 Paragon shall not be obligated to complete the transactions contemplated by this Agreement unless, at or before the Closing, each of the conditions listed below in this section 8.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Paragon:
(a) The representations and warranties of Crosshair and Newco in this Agreement shall be true and correct in all material respects at the case thatClosing;
(b) Newco and Crosshair shall have performed and complied in all material respects with the terms and conditions in this Agreement on each of its part to be performed or complied with at or before the Closing and shall have executed and delivered or caused to have been executed and delivered to Paragon at the Closing all the documents contemplated in sections 7.3 and 7.4 and elsewhere in this Agreement;
(c) During the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement or the Arrangement;
(d) Crosshair and Newco shall have entered into a purchase and sale agreement for Crosshair’s interest in the Properties and any conditions to the performance of that agreement shall have been satisfied or waived;
(e) The Arrangement shall have been approved by the securityholders of Crosshair at a duly called meeting of securityholders in accordance with applicable laws;
(f) The interim order and the Corporation will deliver final order of the Supreme Court of British Columbia in respect of the Arrangement shall each have been obtained and shall not have been set aside;
(g) All regulatory approvals and consents to the Underwriters a certificate transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the approval of any stock exchange that the securities of any of the Corporation Parties are listed on or to which an application for listing has been made;
(h) The Pubco Shares shall have been duly and signed on behalf validly transferred to Newco as part of the Corporation Arrangement;
(i) The Financing and Secondary Offering as outlined in section 5, shall have been completed on terms reasonably acceptable to Paragon;
(j) Paragon shall have been satisfied, acting reasonably, with the results of its due diligence investigation of Newco, including satisfaction with the tax implications of the Arrangement and the sale of its legal and beneficial interest in the Properties to Newco; and
(k) The Consideration Shares to be issued to Paragon shall not represent less than the percentage amounts set out at subsection 6.2 (a), (b), or (c).
8.4 If any condition in section 8.3 shall not have been fulfilled at or before the Closing or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of Paragon to comply with its obligations under this Agreement, then Paragon in its sole discretion may, without limiting any rights or remedies available to Paragon at law or in equity, either:
(a) terminate this Agreement by notice to Newco and Crosshair; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other condition.
8.5 Crosshair shall not be obligated to complete the transactions contemplated by this Agreement unless, at or before the Closing, each of the conditions listed below in this section 8.5 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Crosshair:
(a) The representations and warranties of Newco and Paragon in this Agreement shall be true and correct in all material respects at the Closing;
(b) Newco and Paragon shall have performed and complied in all material respects with the terms and conditions in this Agreement on each of its part to be performed or complied with at or before the Closing and shall have executed and delivered or caused to have been executed and delivered to Crosshair at the Closing all the documents contemplated in sections 7.2 and 7.4 and elsewhere in this Agreement;
(c) During the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement or the Arrangement;
(d) Crosshair and Newco shall have entered into a purchase and sale agreement for Crosshair’s interest in the Properties and any conditions to the performance of that agreement shall have been satisfied or waived;
(e) The Arrangement shall have been approved by the Chief Executive Officer or an executive officer securityholders of Crosshair at a duly called meeting of securityholders in accordance with applicable laws;
(f) The interim order and the final order of the Corporation and the Chief Financial Officer Supreme Court of British Columbia in respect of the Corporation Arrangement shall each have been obtained and shall not have been set aside;
(or such officers g) The Financing shall have been completed on terms reasonably acceptable to Crosshair; and
(h) All regulatory approvals and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the approval of any stock exchange that the securities of any of the Corporation as may be acceptable Parties are listed on or to the Underwriters) addressed to the Underwriters and dated which an application for listing has been made.
8.6 If any condition in section 8.5 shall not have been fulfilled at or before the Closing Date or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of Crosshair to comply with its obligations under this Agreement, then Crosshair in form satisfactory its sole discretion may, without limiting any rights or remedies available to their counselCrosshair at law or in equity, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying thateither:
(a) terminate this Agreement by notice to Newco and Paragon; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other condition.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Crosshair Exploration & Mining Corp)
Conditions of Closing. 9.1 The Unless waived in writing by Purchaser, the obligation of Purchaser to purchase the Shares is subject to the satisfaction in all material respects, on or before the Closing, of the following conditions and of any other conditions otherwise enumerated in this Agreement:
(a) Seller's representations and warranties in Section 4 above are accurate in all material respects;
(b) Seller shall have performed in all material respects all obligations and complied in all material respects with all covenants required to be performed or to be complied with by them under this Agreement;
(c) Purchaser shall have been registered with the SEC and made all appropriate filings necessary to own a majority shareholding interest in the Company;
(d) Neither the Company nor the SEC shall have delivered any notice or expressed any other objection to the purchase and sale of the Purchased Securities and the Closing will be conditional upon and subject to the following conditions being fulfilled at Shares or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and any other matter contemplated by this Agreement;
(e) may be waived in writing in whole or in part by Purchaser shall have transferred the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required Purchase Price to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionSeller;
(bf) Seller shall have notified the directors Company and its transfer agents of the Corporation shall have authorized sale and approved this Agreement, the issuance purchase of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingShares;
(cg) it Purchaser and Seller will have cooperated and collaborated in the preparation of a press release and public statement regarding this Agreement; and
(h) Seller shall (i) immediately notify Purchaser of any event, action, omission or other occurrence, whether intentional or unintentional, taken or omitted to be taken by any person the case consequence of which is that, and or with notice or lapse of time or both the Corporation will deliver to the Underwriters a certificate consequence of which would be that, any of the Corporation representations or warranties of Seller contained in Section 4 is or was materially incorrect, incomplete, insufficient, improper or would otherwise require revisions based upon such event, action, omission or other occurrence; (ii) promptly notify Purchaser of any discovered after the date of this Agreement through the Closing of any event, action, omission, occurrence or situation which Seller has stated, in the representations and signed on behalf warranties contained in Section 4, it has no knowledge of as of the Corporation by the Chief Executive Officer or an executive officer date of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:this Agreement.
Appears in 1 contract
Conditions of Closing. 9.1 The Underwriter has entered into this Agreement in reliance on the representations and warranties of the City contained herein and to be contained in the documents and instruments to be delivered at Closing, and on the performance by the City of its obligations hereunder, both as of the date hereof and as of the date of Closing. Accordingly, the Underwriter’s obligation under this Agreement to purchase and sale pay for the Bonds is subject to the performance by the City of the Purchased Securities its obligations to be performed hereunder at or before Closing, and the Closing will be conditional upon and also subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:conditions:
(a) At the Corporation will have made or obtained time of Closing (1) the necessary filings, approvals, consents representations and acceptances warranties of the appropriate Securities CommissionsCity contained herein are true, complete and correct with the same effect as if made on the date of Closing, (2) this Agreement, the Exchange Deed of Trust and the NYSE required Trust Agreement are in full force and effect and have not been amended, modified or supplemented except as may have been agreed to be made or obtained by the Corporation prior Underwriter, (3) the City has entered into the Undertaking as described in the Official Statement and (4) the City has duly adopted and there are in full force and effect such orders or resolutions as in the opinion of Bond Counsel are necessary in connection with the transactions contemplated hereby, and such orders or resolutions have not been amended, modified or supplemented and the Official Statement has not been amended, modified or supplemented, except as may have been agreed to by the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;Underwriter.
(b) The Underwriter has the directors right to terminate its obligations under this Agreement to purchase and pay for the Bonds by notifying the City of its election to do so if, after the execution hereof and on or before the date of Closing:
(1) legislation shall have been enacted or introduced by the Congress of the Corporation United States, or adopted by either House of the Congress, or enacted or introduced by the General Assembly of the State of North Carolina, or adopted by either House of the General Assembly, or a bill to amend the Code (which, if enacted, would be effective as of a date before the Closing) shall be filed in either House of Congress, or shall have authorized and approved this Agreementbeen reported out of any committee of either the Congress or the General Assembly, or a decision by a court of competent jurisdiction shall be rendered, or a regulation or filing shall be issued or proposed by or on behalf of the Department of the Treasury or the Internal Revenue Service of the United States, or other agency of the federal government, or a release or official statement shall be issued by the President, the issuance Department of the Purchased SecuritiesTreasury or the Internal Revenue Service of the United States, and all matters relating theretoin any such case with respect to or affecting (directly or indirectly) the taxation of interest received on obligations of the general character of the Bonds which, it being hereby represented in the opinion of the Underwriter, materially adversely affects the market for the Bonds or the sale, at the contemplated offering prices (or yields), by the Corporation that Underwriter of the Bonds; or
(2) the United States shall have become engaged in hostilities which have resulted in a declaration of war or a national emergency or other unforeseen national or international calamity shall have occurred or accelerated to such authorization an extent as, in the opinion of the Underwriter, affects materially and approval will adversely the market for the Bonds, or the market price generally of obligations of the general character of the Bonds; or
(3) a general banking moratorium is declared by federal, New York or State of North Carolina authorities or a major financial crisis or a material disruption in commercial banking or securities settlement or clearances services shall have occurred such as to make it, in the judgment of the Underwriter, impractical or inadvisable to proceed with the offering of the Bonds as contemplated in the Official Statement; or
(4) there shall have occurred any material adverse change in the affairs of the City that, in the reasonable judgment of the Underwriter, materially or adversely affects the market price or marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(5) there shall be obtained prior established any new restrictions on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or the charge to the Time net capital requirements of Closing;underwriters established by the New York Stock Exchange, the Securities and Exchange Commission, any other federal or State of North Carolina agency or the Congress of the United States or by executive order; or
(6) a decision of any federal or State of North Carolina court or a ruling or regulation (final, temporary or proposed) of the Securities and Exchange Commission or other governmental agency shall have been made or issued that would make the Bonds or any securities of the City or any similar body of the type contemplated herein subject to the registration requirements of the Securities Act of 1933, as amended, or require the qualification of the Trust Agreement under the Trust Indenture Act of 1939, as amended; or
(7) the withdrawal or downgrading of any underlying rating of, or there shall have been any official statement as to a possible downgrading (such as being placed on “credit watch” or “negative outlook” or any similar qualification) of any underlying rating of, the City’s outstanding indebtedness by a national rating agency; or
(8) a material event occurs which in the opinion of the Underwriter requires the preparation and distribution of a supplement or amendment to the Official Statement.
(c) it shall be On or before the case thatdate of the Closing, the Underwriter has received the following documents in form and the Corporation will deliver substance satisfactory to the Underwriters a certificate of the Corporation Underwriter and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, certifying Raleigh, North Carolina, counsel to the Underwriter (“Underwriter’s Counsel”):
(1) approving opinion of Bond Counsel dated as of the date of Closing relating to the Bonds, in substantially the form attached as Appendix D to the Official Statement;
(2) supplemental opinion of Bond Counsel dated as of the date of Closing and addressed to the Underwriter, in substantially the form attached hereto as Exhibit A;
(3) opinion of the City Attorney dated as of the date of Closing and addressed to the Underwriter, in substantially the form attached hereto as Exhibit B;
(4) opinions of Underwriter’s Counsel dated as of the date of Closing and addressed to the Underwriter, in substantially the forms attached hereto as Exhibit C;
(5) a copy of the Official Statement;
(6) a certificate dated as of the date of Closing, signed by the City Manager or any other duly authorized City representative, to the effect that:
(A) the representations and warranties of the City set forth in this Agreement are true, accurate and complete in all material respects as of the date of Closing and the conditions to be complied with and obligations to be performed by the City hereunder on or before the date of Closing have been complied with and performed;
(B) except as may be disclosed in the Official Statement, there is no litigation or any other proceeding before any court or governmental body or agency pending or, to the best of such official’s knowledge, threatened against or affecting the City or any members of the City Council (nor, to the best of such official’s knowledge, is there any basis therefor), restraining or enjoining the sale, execution or delivery of the Bonds, or in any way contesting or affecting the validity of the Bonds or any proceedings of the City taken with respect to the sale thereof, or wherein an unfavorable decision, ruling or finding would materially and adversely affect (1) the transactions contemplated by this Agreement or the Official Statement, (2) the organization, existence or powers of the City or the title to the office of any of the members of the City Council, (3) the business, properties or assets or the condition, financial or otherwise, of the City, (4) the validity or enforceability of this Agreement, the Deed of Trust, the Trust Agreement or the Bonds (or any other agreement or instrument of which the City is a party, used or contemplated for use in the consummation of the transactions contemplated hereby) or (5) the tax treatment of the interest on the Bonds as described in the Official Statement; and
(C) the Official Statement did not as of its date and does not as of the date of Closing contain any untrue statement of a material fact or omit to state a material fact required to be stated therein for the purpose for which the Official Statement is to be used or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that no representation or warranty is made with respect to the information with respect to the offering of the Bonds set forth on the inside cover page of, in the stabilizing legend in or under the heading “UNDERWRITING” in the Official Statement or in Appendix E to the Official Statement;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of Closing. 9.1 The Underwriters' obligation to purchase and sale of the Purchased Securities and any Initial Units at the Closing will Time shall be conditional upon and subject to the fulfilment at or before the Closing Time of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(a) the Corporation will Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, certifying for and on behalf of the Company that:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Prospectus (except the Underwriters Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Securities, the Over-Allotment Option and the Broker Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, addressed to the Underwriters with respect to the notice of articles and articles of the Company, all resolutions of the Company's board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Underwriters may reasonably request;
(c) the Company shall have made or and/or obtained the all necessary filings, approvals, permits, consents and acceptances authorizations to or from, as the case may be, the board of directors and shareholders of the appropriate Securities CommissionsCompany, the Exchange Securities Regulators, the TSXV, and the NYSE any other applicable person required to be made or obtained by the Corporation prior Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Time Underwriters, acting reasonably;
(d) the Unit Shares, the Warrant Shares, and the Broker Warrant Shares shall have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV;
(e) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing in order Date, from Forooghian + Company Law Corporation, counsel to complete the Offering as herein contemplatedCompany, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company's Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters shall do all that is requiredand their counsel, acting reasonably, with respect to assist the Corporation following matters:
(i) as to fulfill this conditionthe incorporation and subsistence of the Company under the laws of the Province of British Columbia and as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Securities, grant the Over-Allotment Option and issue the Warrant Shares and Broker Securities;
(bii) as to the authorized and issued capital of the Company;
(iii) the directors Company has all requisite corporate power and capacity under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets as described in the Prospectus;
(iv) the execution and delivery of the Corporation shall have authorized Transaction Documents, the performance by the Company of its obligations thereunder, the sale and approved this Agreementissuance of the Offered Securities, the grant of the Over-Allotment Option and the issuance of the Purchased Warrant Shares and Broker Securities, do not and will not conflict with or result in any breach of the notice of articles and articles of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(v) each of the Transaction Documents have been duly authorized and executed and delivered by the Company, and constitute valid and legally binding obligations of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, liquidation, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and the qualification that the enforceability of rights of indemnity and contribution may be limited by applicable law;
(vi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Base Shelf Prospectus and the Prospectus Supplement and the filing thereof with the Securities Regulators, the filing of the Marketing Document with the Securities Regulators and the delivery of the U.S. Private Placement Memorandum;
(vii) the Unit Shares, other than the Over-Allotment Unit Shares issuable at any Option Closing Time, have been duly and validly issued as fully paid and non-assessable Common Shares;
(viii) the Warrants have been duly and validly created and, other than the Warrants issuable at any Option Closing Time, issued;
(ix) the Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Warrants in accordance with the provisions of the Warrant Indenture, the Warrant Shares will be duly and validly issued as fully paid and non- assessable Common Shares;
(x) the Broker Warrants have been duly and validly created and, other than the Broker Warrants issuable at any Option Closing Time, issued;
(xi) the Broker Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Broker Warrants in accordance with the provisions of the Broker Warrant Certificates, the Broker Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(xii) all necessary corporate action has been taken by the Company to authorize the issuance of the Additional Securities, subject to receipt of payment in full for them, and the issuance of the additional Broker Warrants, and when issued and delivered, the Additional Securities and the additional Broker Warrants will be duly and validly issued by the Company and the Over-Allotment Unit Shares will be outstanding as fully paid and non-assessable Common Shares;
(xiii) the rights, privileges, restrictions and conditions attaching to the Offered Securities, the Warrant Shares, the Over-Allotment Option and the Broker Securities conform in all material respects with the description thereof set forth in the Prospectus;
(xiv) all necessary documents have been filed, all requisite proceedings have been taken and all matters relating theretoapprovals, it being hereby represented permits, consents and authorizations of the Securities Regulators in each of the Qualifying Jurisdictions have been obtained by the Corporation that such authorization Company to qualify the distribution to the public of the Offered Securities in each of the Qualifying Jurisdictions through persons who are registered under Canadian Securities Laws and to qualify the grant of the Over-Allotment Option and the issuance of the Broker Warrants to the Underwriters;
(xv) the issuance by the Company of the Warrant Shares upon the due exercise of the Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions in connection therewith;
(xvi) the issuance by the Company of the Broker Warrant Shares upon the due exercise of the Broker Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions in connection therewith;
(xvii) the first trade in, or resale of, the Warrants Shares or the Broker Warrant Shares is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a "control distribution" (as defined in National Instrument 45-102 - Resale of Securities);
(xviii) the Unit Shares, the Warrant Shares, and Broker Warrant Shares have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV; and
(xix) as to such other matters as the Underwriters' legal counsel may reasonably request prior to the Time of ClosingClosing Time;
(cf) it shall be the case that, and the Corporation will deliver to the Underwriters shall have received a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable favourable legal opinion addressed to the Underwriters, dated the Closing Date, from Forooghian + Company Law Corporation, as to: (i) addressed the incorporation and subsistence of Canam and Spinco, (ii) the corporate power and capacity of Canam and Spinco under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Canam and Spinco and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(g) the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date in form satisfactory to their counselDate, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:tax counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that the statements and opinions concerning tax matters set forth in the Prospectus Supplement under the headings "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations" insofar as they purport to describe the provisions of the laws referred to therein are fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and limitations set out under such heading;
(h) if any Offered Securities are offered and sold to U.S. Purchasers pursuant to Schedule "A" attached hereto, the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇ LPC, special United States counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that no registration of the Offered Securities offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Securities to U.S. Purchasers is made in accordance with Schedule "A" attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Securities;
(i) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, as to title to the mineral concessions comprising the ▇▇▇▇▇▇ Property;
(j) the Underwriters shall have received from the Company's Auditors a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(a)(iv);
(k) the Underwriters shall have received executed copies of all the lock-up agreements requested by the Underwriters pursuant to Section 6(l) in form and substance satisfactory to the Underwriters, acting reasonably;
(l) the Underwriters shall have received certificates of good standing or similar certificates with respect to the jurisdiction in which the Company, Canam and Spinco are existing;
(m) the Underwriters shall have received a certificate from the transfer agent and registrar of the Company as to the issued and outstanding Common Shares as at the close of business on the Business Day prior to the Closing Date; and
(n) the Underwriters shall have received such other documents as the Underwriters or its counsel may reasonably request prior to the Closing Time.
Appears in 1 contract
Conditions of Closing. 9.1 (a) The purchase and sale obligations of the Purchased Securities and Company hereunder in connection with the Closing will be conditional upon and are subject to the following conditions being fulfilled met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date of the representations and warranties of the Subscriber contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Subscriber required to be performed at or prior to the Time Closing Date shall have been performed; and
(iii) the delivery by the Subscriber of Closingthe items set forth in Section 4(b) of this Unit Purchase Agreement.
(b) The obligations of the Subscriber hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which conditions case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Corporation covenants Company required to exercise its reasonable best efforts to have fulfilled be performed at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will Date shall have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionbeen performed;
(biii) the directors delivery by the Company of the Corporation shall have authorized and approved items set forth in Section 4(a) of this Unit Purchase Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(civ) it there shall have been no Material Adverse Effect with respect to the Company since the date hereof;
(v) the Unit Shares (I) shall be listed on the case thatTSXV and (II) shall not have been suspended, and the Corporation will deliver to the Underwriters a certificate as of the Corporation and signed on behalf of the Corporation Closing Date, by the Chief Executive Officer Canadian Securities Administrators or an executive officer the TSXV from trading on the TSXV nor shall the Canadian Securities Administrators or the TSXV have threatened any suspension in writing as of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory nor shall the Company have failed to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:meet the minimum listing maintenance requirements of the TSXV; and
(vi) TSXV Approval shall have been obtained.
Appears in 1 contract
Sources: Unit Purchase Agreement
Conditions of Closing. 9.1 The purchase and sale obligations of the Purchased Securities and the Closing will parties hereunder shall at all times be conditional upon and subject to the continued accuracy of all representations and warranties of the parties contained herein as though such representations and warranties had been made at and as of such times, and the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersadditional conditions:
(a) The Registration Statement shall have become effective and no stop order suspending the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances effectiveness of the appropriate Securities Commissions, the Exchange Registration Statement shall have been issued and the NYSE required to be made no proceeding for that purpose shall have been initiated or obtained threatened by the Corporation prior to SEC; and all requests for additional information on the Time part of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters SEC shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionhave been complied with;
(b) the directors of the Corporation SSB shall have authorized and approved this Agreement, the issuance received an opinion of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇Will▇▇▇ ▇▇▇▇ & ▇▇ LLPall▇▇▇▇▇, certifying ▇▇ted the Closing Date (as defined in Paragraph 7 below), in form and substance satisfactory to it, to the effect that:
(i) The Partnership has been duly formed and is validly existing as a limited partnership under the Partnership Law with full partnership power and authority to carry out its obligations under this Agreement and the Partnership Agreement,
(ii) The offer and sale of the Units has been duly authorized by the Partnership and the Units constitute valid limited partnership interests in the Partnership which conform to the description thereof contained in the Prospectus; and the liability of each limited partner will be limited as set forth in the Prospectus, and no limited partner will be subject to personal liability for the debts, obligations, or liabilities of the Partnership by reason of his being a limited partner, other than as described in the Prospectus;
(iii) The offer and sale of the Units and the compliance by the Partnership with all of the provisions of this Agreement will not conflict with or result in a breach of any of the terms or provisions of the Partnership Certificate or Partnership Agreement, or, to the best of the knowledge of such counsel, any agreement to which the Partnership is a party or by which it is bound;
(iv) To the best of the knowledge of such counsel, there is no action, suit, litigation or proceeding before or by any court or governmental agency, federal, state or local, pending or threatened against, or affecting or involving the property or business of SBFM, or the business of the Partnership, that would materially and adversely affect the condition (financial or otherwise), business or prospects of SBFM or the Partnership; and
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued nor has any proceeding for the issuance of such an order been initiated or threatened.
Appears in 1 contract
Sources: Selling Agreement (Salomon Smith Barney Diversified 2000 Futures Fund Lp)
Conditions of Closing. 9.1 The purchase and sale obligation of the Purchased Securities and Underwriters to purchase the Initial Shares at the Closing will Time on the Closing Date and to purchase any Additional Shares at the Closing Time on an Option Closing Date shall be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances satisfactory completion of the appropriate Securities Commissions, Underwriters’ due diligence investigations of the Exchange Company and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionSubsidiaries;
(b) the directors of the Corporation Underwriters shall have authorized and approved this Agreement, received a certificate of status (or the issuance of equivalent thereof pursuant to the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained relevant governing legislation) dated within one business day prior to the Time Closing Date from each of Closingthe Company and the material GTI Entities;
(c) it the Underwriters shall be have received a certificate from the case thatCompany, dated as of the Closing Date and addressed to the Underwriters, signed by an officer of such person with respect to the Constating Documents of the Company, all resolutions of the Company’s board of directors relating to the Offering Documents and this Agreement, and the Corporation will deliver transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters as the Underwriters may reasonably request;
(d) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters a certificate of the Corporation and Underwriters, signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation Company, certifying for and on behalf of the Company, to the best of their knowledge, information and belief, that, as at the Closing Time:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in the Offered Shares or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any regulatory authority;
(ii) since January 1, 2018, (A) there has been no adverse change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and the Subsidiaries (taken as a whole); and (B) other than as disclosed in the Offering Documents, no transaction has been entered into by the Company or any Subsidiary which is or would be material to such person other than in the ordinary course of business;
(iii) the Company has complied with all the material terms, and fulfilled the covenants and conditions of this Agreement on its part to be complied with up to the Closing Time;
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement; and
(v) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Subordinate Voting Shares or other securities of the Company, or the Offered Shares to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(e) the Underwriters shall have received satisfactory evidence that all requisite regulatory approvals and consents have been obtained by the Company in order to complete the Offering; and (ii) all necessary forms have been filed with the CSE to effect the listing of the Offered Shares on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(f) the Underwriters shall have received a legal opinion addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from Canadian legal counsel for the Company, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of the Corporation Company, as appropriate and subject to confirmation by the Underwriters, with respect to the following matters:
(i) the Company is a corporation incorporated as a company under the laws of British Columbia, is an existing company, and is, with respect to the filing of annual returns, in good standing under the Business Corporations Act (British Columbia);
(ii) the Company has all requisite corporate power, capacity and authority to own and lease its properties and assets, to carry on business and to execute and deliver this Agreement and to perform its obligations hereunder, including to offer, issue, sell and deliver the Initial Shares and to grant the Over- Allotment Option and offer, issue, sell and deliver the Additional Shares issuable upon exercise of the Over-Allotment Option;
(iii) as to the authorized and issued capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Offered Shares are accurately summarized in all material respects in the Prospectus;
(v) all necessary corporate action has been taken by the Company to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder, including the creation, offering, issue and sale of the Offered Shares and the creation and grant of the Over-Allotment Option;
(vi) this Agreement has been duly executed and delivered by the Company;
(vii) this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms;
(viii) the execution and delivery by the Company of this Agreement, the performance of its obligations hereunder including the creation, offering, issue and sale of the Offered Shares and the creation and grant of the Over- Allotment Option, do not and will not breach of or result in a default under, and do not creates a state of facts which, after notice or lapse of time or both, will results in a breach of or default under: (i) the Business Corporations Act (British Columbia); (ii) the Company’s notice of articles and articles; or (iii) any resolutions of the directions or shareholders of the Company;
(ix) the Initial Shares have been duly and validly authorized, created and issued by the Company and are validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares;
(x) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares issuable upon the exercise of the Over-Allotment Option have been duly and validly allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares will be duly and validly authorized and issued and will be outstanding as fully paid and non-assessable Common Shares;
(xi) Odyssey Trust Company, at its principal office in the City of Calgary, Alberta, has been duly appointed by the Company as the registrar and transfer agent for the Subordinate Voting Shares;
(xii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xiii) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof in each of the Qualifying Jurisdictions;
(xiv) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Initial Shares, the Over-Allotment Option and the Additional Shares in each of the Qualifying Jurisdictions through dealers who are registered under Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xv) all necessary forms have been filed with the CSE to effect the listing of the Offered Shares on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(xvi) as to the accuracy of the legal statements under the heading “Eligibility For Investment” and “Certain Canadian Federal Income Tax Considerations” in the Prospectus; and
(xvii) such other matters as the Underwriters and their counsel may be acceptable require, acting reasonably;
(g) the Underwriters shall have received a favourable legal opinion of United States counsel to the Company, addressed to the Underwriters, in form and substance acceptable to counsel to the Underwriters, acting reasonably, dated the Closing Date to the effect that no registration of the Offered Shares offered and sold to purchasers in the United States is or shall be required under the U.S. Securities Act;
(h) the Underwriters shall have received a legal opinion addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from United States counsel to the Company, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of GTI, as appropriate and subject to confirmation by the Underwriters, with respect to the following matters:
(i) GTI is duly incorporated, validly existing and in good standing in the jurisdiction of its incorporation;
(ii) GTI has the power and authority under Section 18-106 of the Delaware Limited Liability Act to conduct any lawful business activity;
(iii) the authorized and issued capital of GTI and the ownership thereof; and
(iv) such other matters as the Underwriters and their counsel may require, acting reasonably;
(i) the Underwriters shall have received a legal opinion addressed to the Underwriters, in form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from local counsel to the material GTI Subsidiaries, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of the material GTI Subsidiaries, as appropriate and subject to confirmation by the Underwriters, with respect to the following matters:
(i) each material GTI Subsidiary is duly incorporated validly existing and in good standing in the jurisdiction of its incorporation;
(ii) each material GTI Subsidiary has the corporate power to own, lease and operate its properties and conduct its business as currently conducted; and
(iii) the authorized and issued capital of each material GTI Subsidiary and the ownership thereof;
(j) the Underwriters shall have received satisfactory evidence that all requisite approvals and consents have been obtained by the Company in order to complete the Offering;
(k) the Company shall cause the appropriate auditors to deliver to the Underwriters one or more “bring down” comfort letters, addressed to the Underwriters and the board of directors of the Company, dated the Closing Date Date, in form and substance satisfactory to their counselthe Underwriters, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPacting reasonably, certifying that:bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letters referred to in Section 5(a)(iii) hereof;
(l) the representations and warranties of the Company contained in this Agreement will be true in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) at and as of the Closing Time on the Closing Date as if such representations and warranties were made at and as of such time and all agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by the Company at or prior to the Closing Time on the Closing Date will have been performed, complied with or satisfied at or prior to that time;
(m) there shall not be any misrepresentation in the Offering Documents or any undisclosed material change or undisclosed material facts relating to the Company or the Offered Shares;
(n) the Company shall have received a Preliminary Receipt and a Final Receipt qualifying the Offered Shares for distribution in the Qualifying Jurisdictions, and neither the Preliminary Receipt nor the Final Receipt shall be invalid or have been revoked or rescinded by any Securities Commission;
(o) the Underwriters shall have received a certificate from Odyssey Trust Company as to the number of Subordinate Voting Shares issued and outstanding as at the date immediately prior to the Closing Date; and
(p) the Underwriters shall have received such other certificates, opinions, agreements or closing documents in form and substance reasonably satisfactory to the Underwriters as the Underwriters may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 9.1 The purchase and sale parties acknowledge that completion of the Purchased Securities and the Closing will be transaction provided for herein is conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to Purchaser shall be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is requiredsatisfied, acting reasonably, that the Company has, as of the Closing Date, no outstanding liabilities, except for (i) unsecured liabilities to assist trade creditors incurred in the Corporation ordinary course of the Company's business, which shall not exceed (pound)125,000 and (ii) with respect to fulfill this condition;income taxes payable, as disclosed in such subparagraph 9(o) above.
(b) the directors Purchaser shall be satisfied with its negotiations with the employees and consultants of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior Company with respect to the Time of ClosingPost-Closing employment;
(c) it the Purchaser shall have received written confirmation from all secured parties and governmental bodies that the Purchased Shares may be the case thattransferred as contemplated hereby, free of all charges or encumbrances;
(d) all directors and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable Company shall have resigned and released the Company of further liability, except for those directors and officers whom the Purchaser wishes to retain;
(e) the Shareholder shall provide the Company with a general release, in form and substance satisfactory to the UnderwritersPurchaser, of any claim existing as at the Closing Date;
(f) addressed the Shareholder and the directors of the Company shall have executed the various corporate documents and resolutions of the Company that require execution by the Shareholder and the directors of the Company, and in the event that any of the corporate records have deficiencies, the Shareholder will assist the Purchaser to rectify such deficiencies;
(g) the Underwriters representations and dated warranties of the Shareholder contained in this Agreement shall be true and correct as of the Closing Date with the same force and effect as if such representations and warranties had been made on and as of such date;
(h) all approvals requested for the transfer of the Purchased Shares shall have been obtained including the approval of the board of directors of the Company;
(i) the Shareholder shall have returned all material and documents of the Company in form his possession, and shall verify that any electronically stored information has been returned with all copies destroyed;
(j) TD Bank shall have provided its written consent to this transaction in terms satisfactory to their counselthe Shareholder and the Purchaser; and
(k) the Purchaser and the Shareholder shall have executed and delivered a forbearance agreement addressing the status of the Navtech Flight Operations Support Software, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:systems products and services (including without limitation Navtech Master Products & Services Agreement No. 94-05) ("Navtech FOMS").
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale Closing of the Purchased Securities and the Closing will transaction contemplated in this Agreement shall be conditional upon and subject to the satisfaction of the following conditions being fulfilled precedent on or prior to the Closing Date, as the case may be:
(a) As to each party, the representations and warranties of the other party shall be true and correct in all material respects at the time of the Closing to the same effect and extent as if such warranties and representations were made at the Closing;
(b) As to each party, the performance by the other party of all terms and conditions of this Agreement required to be performed in all material respects at or prior to the Time Closing shall have been fulfilled, including the delivery of Closing, which conditions the Corporation covenants all documents required hereunder to exercise its reasonable best efforts to have fulfilled be delivered at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it With respect to the Bankruptcy Case:
(i) on or prior to March 3, 1999, Seller shall be have filed the case thatappropriate motion pursuant to the Bankruptcy Code with the Bankruptcy Court seeking the authorization of the sale of the Purchased Assets to Purchaser as contemplated by the terms of this Agreement (the "Sale Motion");
(ii) on or prior to March 10, 1999, the Bankruptcy Court shall have entered an order approving the Competitive Bid Procedure, as described in Section 6.1 hereof, and the Corporation will deliver Break-Up-Fee, as defined in Section 8.4. hereof; and
(iii) on or prior to March 19, 1999, the Underwriters a certificate Bankruptcy Court shall have issued the Sale Order; and
(d) There shall have been no material adverse changes in the condition of the Corporation and signed on behalf Purchased Assets from the date hereof through the Closing Date; and,
(e) Except with respect to an appeal of the Corporation Sale Order (so long as such appeal has not stayed the Sale Order), no suit, action, or other proceeding shall be threatened by or pending before any court or governmental agency in which it will be or it is sought to restrain or prohibit or to obtain material damages or relief in connection with this Agreement or the Chief Executive Officer or an executive officer consummation of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Michael Anthony Jewelers Inc)
Conditions of Closing. 9.1 5.1 The obligation of the Purchaser to purchase and sale of the Purchased Securities and the Closing will shall be conditional upon and subject to the following conditions being for the exclusive benefit of the Purchaser to be fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled and/or performed at or prior to the Time of Closing on the Closing Date:
(a) no action or proceeding shall be pending or threatened by any person, company, firm, governmental authority, securities commission, regulatory body or agency to enjoin or prohibit the purchase and which conditions sale of the Purchased Securities contemplated hereby or the right of the Purchaser to own the Purchased Securities or to suspend or stop trading in paragraphs securities of the Corporation;
(b) the covenants, representations and warranties of the Vendor contained in Article 2 hereof shall be true and correct on and as of the date of the acceptance of this offer by the Vendor and shall also be true and correct on and as of the Closing Date with the same force and effect as though such covenants, representations and warranties had been made on and as of such date;
(c), ) the Vendor shall have complied with all covenants and agreements herein agreed to be performed or caused to be performed by it;
(d) except to the extent contemplated by section 5.2 hereof, without the Purchaser's prior written consent, since the date hereof, the Corporation shall not have taken any act, entered into or become a party to or subject to any agreement or transaction or incurred or become liable for any obligation except in the ordinary course of business, and no such act, agreement, transaction, liability or obligation in the ordinary course of business shall result in, or shall upon the completion thereof result in, a material change in the assets, liabilities, business, affairs, operations, prospects (financial or otherwise) or capital of the Corporation;
(e) since the date hereof, the Corporation shall not have redeemed, purchased or otherwise acquired any of its outstanding shares or authorized or agreed to any such redemption, purchase or acquisition or declared or paid any dividends or authorized or made any distributions or agreed to do so on or in respect of its outstanding securities; and
(f) since the date hereof, the Corporation shall not have reserved, set aside, allotted, issued or agreed to reserve, set aside, allot or issue, conditionally or otherwise, any shares or any securities, rights or warrants having the right or option to acquire, directly or indirectly, through purchase, conversion, exchange or otherwise, any shares. In case any of the foregoing conditions has not been fulfilled and/or performed at or before the Time of Closing to the satisfaction of the Purchaser, the Purchaser may rescind the Agreement by notice to the Vendor and in such event the Purchaser shall be released from all obligations hereunder; provided that any of such conditions may be waived in writing in whole or in part by the Underwriters:
(a) Purchaser without prejudice to its rights of rescission in the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances event of the appropriate non-fulfilment of any other condition or conditions.
5.2 The obligation of the Purchaser to purchase the Purchased Securities Commissionsshall be subject to the further condition for the exclusive benefit of the Purchaser that, on or before the close of business on December 13, 1996, the Exchange Purchaser shall be satisfied that it is or will be in compliance with all applicable legal and regulatory requirements relating to it with respect to its investment in the NYSE required Purchased Securities and shall have received, in its discretion, all necessary or appropriate orders, rulings and consents from regulatory bodies, securities commissions, government agencies and others with respect thereto.
5.3 In the event that the Purchaser shall not have notified the Vendor on or before 5 o'clock in the afternoon (Vancouver time) on December 13, 1996 that the foregoing condition has been fulfilled or waived, then such condition shall be deemed not to be made have been fulfilled.
5.4 In the event that the condition referred to in section 5.2 shall not have been fulfilled or obtained waived by the Corporation prior Purchaser, the Agreement shall be rescinded and each of the parties hereto shall be released from all obligations hereunder.
5.5 The obligations of the Vendor to sell the Purchased Securities shall be subject to the Time condition for the exclusive benefit of Closing in order to complete the Offering as herein contemplatedVendor that, it being understood on or before the close of business on December 13, 1996, that the Underwriters Vendor's "disinterested directors" shall do all that is required, acting reasonably, to assist have approved the Corporation to fulfill this condition;
(b) the directors terms of the Corporation shall have authorized and approved this Agreement. If the foregoing condition has not been fulfilled, the issuance Agreement shall be rescinded and each of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it parties shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:released from any obligations hereunder.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale effectiveness of the Purchased Securities and the Closing will this Amendment shall be conditional upon and subject to the satisfaction of each of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersprecedent:
(a) Borrower shall have executed and delivered to ▇▇▇▇▇▇ the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionReplacement Note;
(b) the directors of the Corporation Borrower shall have authorized executed and approved delivered to ▇▇▇▇▇▇ this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingAmendment;
(c) it ▇▇▇▇▇▇ shall be the case that, and the Corporation will deliver to the Underwriters a certificate have received an opinion of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇, counsel for the Borrower, together with an opinion of local counsel from each of Maryland and Washington, in each case acceptable to ▇▇▇▇▇▇ LLPand its counsel;
(d) ▇▇▇▇▇▇ Realty Corporation shall have executed and delivered to ▇▇▇▇▇▇ the Confirmation of Guaranty and Environmental Indemnity Agreement;
(e) Borrower shall have taken all actions required to authorize the execution and delivery of this Amendment and the Replacement Note and the performance thereof by Borrower;
(f) ▇▇▇▇▇▇ shall have received wire transfer instructions in connection with the Loan to be made hereunder;
(g) ▇▇▇▇▇▇ shall have received with respect to the Mortgaged Property, certifying that:a satisfactory Title Commitment to be issued and delivered by the Title Company in an amount equal to the increased Loan Amount;
(h) no Event of Default, or event that with notice and the passage of time would become an Event of Default, shall have occurred and be continuing on and as of the date hereof before and after giving effect to this Amendment;
(i) all of the representations and warranties of the Borrower contained herein and in the Modified Loan Document shall be true and correct in all material respects on and as of the date hereof;
(j) no law or regulation shall have been adopted, no order, judgment or decree of any governmental authority shall have been issued, and no litigation shall be pending or threatened, which does or, with respect to any threatened litigation, seeks to enjoin, prohibit or restrain, the making or repayment of the Loans or any participations therein or the consummation of the transactions contemplated hereby;
(k) no event, act or condition shall have occurred after the Closing Date which, in the reasonable judgment of the Lead Agent or the Required Banks, as the case may be, has had or is likely to have a Material Adverse Effect;
(l) Borrower shall have delivered to ▇▇▇▇▇▇ such additional documentation as ▇▇▇▇▇▇ may reasonably request; and
(m) there shall have been paid to ▇▇▇▇▇▇ all fees due and payable on or before the date hereof and all expenses due and payable on or before the date hereof, including, without limitation, reasonable attorneys' fees and expenses, and other costs and expenses incurred in connection with this Amendment.
Appears in 1 contract
Conditions of Closing. 9.1 The Purchaser shall not be obligated to complete the purchase and sale of the Purchased Securities and Royalty Interests pursuant to this Agreement unless at or before the Closing will be conditional upon and subject to Date, unless each of the following conditions being fulfilled at or prior to the Time of Closingconditions, which conditions are for the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to sole benefit of the Time of Closing Purchaser and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersPurchaser, has been satisfied, and the Seller agrees with the Purchaser to take all such actions, steps and proceedings as necessary to ensure the following conditions are fulfilled at or before the Closing Date:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents representations and acceptances warranties of the appropriate Securities Commissions, the Exchange Seller and the NYSE required to Shareholder contained in section 6 shall be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditiontrue and correct at Closing;
(b) the directors each of the Corporation Seller and the Shareholder shall have authorized performed and approved complied with all of the terms and conditions in this Agreement on its part to be performed or complied with at or before Closing and shall have executed and delivered or caused to have been executed and delivered to the Purchaser at the Closing all the documents contemplated in this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closingtendered in accordance with this Agreement;
(c) it there shall be no litigation or proceedings:
(i) pending against the case thatSeller or the Shareholder or involving the assets or properties of the Seller or the Shareholder, for the purpose of enjoining, preventing or restraining the completion of the transactions contemplated hereby or otherwise claiming that such completion is improper; or
(ii) pending against the Seller or Shareholder which:
(A) in the result, could adversely affect the right of the Purchaser to acquire or retain the Royalty Interests; or
(B) in the judgment of the Purchaser, would make the completion of the transactions contemplated by this Agreement inadvisable; and
(d) each of the Seller and the Corporation will deliver Shareholder shall have delivered to the Underwriters Purchaser an executed release in the form attached as Schedule “A” which:
(i) fully discharges and releases the Purchaser from any obligations under the Royalty Agreement; and
(ii) fully discharges and releases any Lien arising under the Royalty Agreement;
(e) the Seller shall have delivered to the Purchaser a certificate of the Corporation President of the Seller attaching:
(i) a copy of resolutions of the Board of the Seller approving the purchase and signed sale under this Agreement; and
(ii) an incumbency certificate setting out the signatures and positions of the persons who are authorized to sign documents on behalf of the Corporation by Seller in accordance with the Chief Executive Officer or an executive officer constating documents of the Corporation and Seller;
(f) the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable Seller shall have delivered to the UnderwritersPurchaser an executed general conveyance agreement in the form attached as Schedule “B”; and
(g) addressed the Seller shall have delivered to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:Purchaser an executed copy of this Agreement.
Appears in 1 contract
Sources: Royalty Interest Repurchase Agreement (Dynamic Oil & Gas Inc)
Conditions of Closing. 9.1 The purchase and sale obligations of the Purchased Securities Placement Agent to privately place the Bonds on the date of Closing shall be subject, except as specifically waived in writing by the Placement Agent in its sole discretion, to (i) the accuracy of the representations and warranties on the part of the Authority and the Closing will be conditional upon Borrower contained herein as of the date hereof and subject as of the date of Closing; (ii) the accuracy in all material respects of the statements of the officers and the elected public officials, as the case may be, of the Authority and the Borrower made in any certificates or other documents furnished pursuant to the following conditions being fulfilled provisions hereof, and (iii) the performance by the Authority and the Borrower of their respective obligations to be performed hereunder or otherwise at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior Closing and to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing additional conditions:
(a) At the Corporation will Closing, the Resolution shall have made or obtained been duly adopted by the necessary filingsAuthority and shall be in full force and effect and constitute the legal, approvals, consents valid and acceptances binding action of the appropriate Securities CommissionsAuthority, the Exchange and the NYSE required to be made or obtained Borrower Documents, when executed and delivered by the Corporation prior parties thereto, will constitute legal, valid and binding obligations of the parties thereto, enforceable in accordance with their respective terms, and such documents shall not have been amended, modified or supplemented except as may have been agreed to in writing by the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionPlacement Agent;
(b) At the directors Closing, there shall not have been any material adverse change in the business, properties or financial condition of the Corporation shall have authorized and approved this AgreementBank, as described in the issuance Placement Memorandum or of the Purchased SecuritiesBorrower, which in the judgment of the Placement Agent, makes it inadvisable to proceed with the offer and all matters relating thereto, it being hereby represented by sale of the Corporation that such authorization and approval will be obtained prior to the Time of ClosingBonds;
(c) it The Letter of Credit shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation have been delivered by the Chief Executive Officer Bank;
(d) At the Closing, the Placement Memorandum shall not have been amended, modified or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation supplemented, except as may be acceptable have been agreed to in writing by the UnderwritersPlacement Agent;
(e) addressed to Neither the Underwriters and dated Authority nor the Closing Date Borrower shall have defaulted in form satisfactory to the performance of any of their counselcovenants hereunder, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying thatunder the Indenture or under the Borrower Documents;
(f) The Placement Agent shall have received:
Appears in 1 contract
Sources: Loan Agreement (Lannett Co Inc)
Conditions of Closing. 9.1 The purchase and sale obligation of the Purchased Securities and Underwriters to purchase the Initial Units at the Closing will Time on the Closing Date and to purchase any Additional Units at the Closing Time on an Option Closing Date shall be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing:
(a) the Corporation will Underwriters shall have made received a certificate of status (or obtained the necessary filings, approvals, consents and acceptances of equivalent thereof pursuant to the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation relevant governing legislation) dated within one business day prior to the Time of Closing in order to complete Date from the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionCompany and MMDC;
(b) the directors Underwriters shall have received a certificate from the Company, dated as of the Corporation shall have authorized Closing Date and approved addressed to the Underwriters, signed by an officer of such person with respect to the Constating Documents of the Company, all resolutions of the Company’s board of directors relating to the Offering Documents, this Agreement, the issuance of Warrant Indenture and the Purchased Securitiescertificates representing the Compensation Options, and all the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters relating thereto, it being hereby represented by as the Corporation that such authorization and approval will be obtained prior to the Time of ClosingUnderwriters may reasonably request;
(c) it the Underwriters shall be have received a certificate from the case thatCompany, dated as of the Closing Date and the Corporation will deliver addressed to the Underwriters a certificate of the Corporation and Underwriters, signed on behalf of the Corporation by the Co-Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation Company, certifying for and on behalf of the Company, to the best of their knowledge, information and belief, that, as at the Closing Time:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in the Offered Units or any other securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any regulatory authority;
(ii) since the beginning of the current financial year of the Company, (A) there has been no adverse change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and the Subsidiaries (taken as a whole); and (B) other than as disclosed in the Offering Documents, no transaction has been entered into by the Company or any Subsidiary which is or would be material to such person other than in the ordinary course of business;
(iii) the Company has complied with all the material terms, and fulfilled the covenants and conditions of this Agreement on its part to be complied with up to the Closing Time;
(iv) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects (except for representations and warranties that are qualified as to materiality or Material Adverse Effect, which shall be true and correct in all respects) with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement; and
(v) the Final Receipt has been issued by the OSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or other securities of the Company, or the Shares and Warrants to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(d) the Underwriters shall have received satisfactory evidence that all requisite regulatory approvals and consents have been obtained by the Company in order to complete the Offering; and (ii) all necessary forms have been filed with the CSE to effect the listing of the Shares, the Warrants and the Compensation Shares issued upon the exercise of the Compensation Options, on the CSE, subject to the satisfaction of standard listing conditions of the CSE;
(e) the Underwriters shall have received a legal opinion addressed to the Underwriters, in the form and substance satisfactory to the Underwriters, acting reasonably, dated as of the Closing Date, from Canadian legal counsel for the Company, which counsel, in turn may rely, only as to matters of fact, on certificates of officers of the Corporation Company, as may be acceptable appropriate and subject to confirmation by the Underwriters, with respect to the Underwritersfollowing matters:
(i) addressed the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly amalgamated and validly existing under the laws of British Columbia, and has all requisite corporate power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets as described in the Prospectus;
(iii) as to the Underwriters authorized and dated issued capital of the Closing Date Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Shares, the Warrants and the Warrant Shares are accurately summarized in all material respects in the Prospectus;
(v) the Initial Shares and Initial Warrants sold pursuant to the Offering have been duly and validly created and authorized and are issued and are outstanding as fully paid shares or securities (as the case may be) of the Company and, in the case of the Initial Shares, are non-assessable;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly created, allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option including receipt by the Company of payment in full therefor, the Additional Shares and the Additional Warrants will be duly and validly created, authorized, issued and outstanding as fully paid shares or securities (as the case may be) and, in the case of the Additional Shares, are non-assessable;
(vii) the Warrant Shares have been duly and validly allotted and reserved for issuance and upon the exercise of the Warrants in accordance with their terms, the Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(viii) the Compensation Options have been duly created, authorized and issued by the Company;
(ix) the Compensation Shares issuable upon the exercise of the Compensation Options have been validly reserved for issuance by the Company and, upon the payment of the exercise price therefor and the issue thereof, the Compensation Shares will be validly issued as fully paid and non-assessable Common Shares
(x) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement, the Warrant Indenture and to issue the certificates representing the Compensation Options, and to perform its obligations hereunder and thereunder; (ii) to offer, issue, sell and deliver the Initial Shares and the Initial Warrants comprising the Initial Units; (iii) to grant the Over-Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants comprising the Additional Units issuable upon exercise of the Over-Allotment Option; (iv) to issue, sell and deliver the Warrant Shares upon the exercise of the Warrants; and (v) to issue and grant the Compensation Options and to issue the Compensation Shares upon the exercise of the Compensation Options;
(xi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over-Allotment Option, the issue of the Compensation Options and the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and each of this Agreement and the Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to appropriate qualifications that are customary of an offering of this nature;
(xiii) the execution and delivery of this Agreement and the Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants comprising the Additional Units upon exercise of the Over- Allotment Option, the issuance and grant of the Compensation Options and the issuance of the Compensation Shares upon the exercise of the Compensation Options, and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the transactions contemplated by this Agreement and the Warrant Indenture, do not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (i) any of the terms, conditions or provisions of the articles of incorporation or amalgamation, as applicable, of the Company, or (ii) the laws of the Province of Ontario and the federal laws of Canada applicable therein;
(xiv) the form satisfactory and terms of the definitive certificate representing the Common Shares and the Warrants have been approved by the directors of the Company and comply in all material respects with the BCBCA, the articles and by-laws of the Company and the rules of the CSE;
(xv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Common Shares and Restricted Voting Shares and as Warrant agent, registrar and transfer agent for the Warrants;
(xvi) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Initial Shares and the Initial Warrants comprising the Initial Units, the Compensation Options, the Over- Allotment Option and the Additional Shares and the Additional Warrants comprising the Additional Units in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xvii) the issuance by the Company of (i) the Warrant Shares in accordance with and pursuant to the terms and conditions of the Warrants and the Warrant Indenture; and (ii) the Compensation Shares upon the exercise of the Compensation Options, is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit or consent of the Securities Commissions is required to be obtained by the Company under the Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance of the Warrant Shares and the Compensation Shares;
(xviii) the first trade in Warrant Shares underlying the Warrants and the Compensation Shares underlying the Compensation Options is exempt from the prospectus requirements of the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no approval, permit, consent or authorization of regulatory authorities is required to be obtained by the Company under Applicable Securities Laws of the Qualifying Jurisdictions to permit such trade through registrants registered under Applicable Securities Laws who have complied with such laws and the terms and conditions of their counselregistration, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPprovided that (i) such trade is not a “control distribution” as that term is defined in National Instrument 45-102 – Resale of Securities at the time of such trade, certifying that:(ii) the Company is a reporting issuer (as defined under Applicable Securities Laws) at the time of such first trade, and
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 9.1 The purchase and sale obligations of the Purchased Securities Underwriter and any Substituted Purchasers to complete the Closing will purchase of Units as contemplated hereby shall be conditional upon and subject the Underwriter being satisfied, acting reasonably, with the results of its due diligence investigations relating to the following conditions being fulfilled Company and upon the fulfilment at or prior to before the Closing Time of Closingthe following conditions, which conditions the Corporation Company covenants to exercise use its reasonable best efforts to have fulfil or cause to be fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersTime:
(a) the Corporation will have made or obtained execution and delivery of this Agreement and the necessary filings, approvals, consents Subscription Agreements and acceptances the creation and issuance of the appropriate Securities Commissions, Shares and Warrants underlying the Exchange and the NYSE required to be made or obtained Units shall have been duly authorized by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this conditionnecessary corporate action;
(b) all necessary consents and approvals with respect to the directors of the Corporation shall have authorized sale and approved this Agreement, the issuance of the Purchased Securities, Shares and all matters relating thereto, it being hereby represented by Warrants underlying the Corporation that such authorization and approval will be obtained prior to the Time of ClosingUnits shall have been obtained;
(c) it the Underwriter shall be the case thathave received certificates, in form and the Corporation will deliver substance satisfactory to the Underwriters Underwriter, stating that the Company is not in default under the Securities Laws;
(d) the Underwriter shall have received a certificate addressed to it and to the Substituted Purchasers, dated as of the Corporation and Closing Date, signed on behalf of the Corporation by the President and Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (Company, or such other officers of the Corporation Company as the Underwriter may be acceptable accept, certifying on behalf of the Company to the Underwriterseffect that, except as has been generally disclosed at the date thereof:
(i) addressed there has not been any material adverse change since June 30, 2000 in relation to the Underwriters Company and dated its subsidiary on a consolidated basis;
(ii) since June 30, 2000 there have been no material transactions entered into by the Company or its subsidiary other than transactions in the ordinary course of business that would not constitute a material change;
(iii) neither the Company nor any of its subsidiary has any undisclosed contingent liability that is material to the Company;
(iv) no event of default under any agreement or instrument pursuant to which indebtedness of the Company or its subsidiary has been created, and no event which with the giving of notice or the passage of time, or both, would constitute an event of default under any such agreement or instrument, has occurred and is continuing and no default under any agreement or instrument to which the Company or its subsidiary is a party or subject will occur as a result of the issue, sale and distribution of the Shares and Warrants underlying the Units, the entry into of this Agreement and the Subscription Agreements or the performance by the Company of its obligations hereunder and thereunder;
(v) there are no actions, suits or proceedings, whether on behalf of or against the Company or its subsidiary, pending or, to the knowledge of the Company, threatened against or affecting the Company or its subsidiary at law or in equity, before or by any court or federal, state, municipal or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Company and which are material to the Company;
(vi) the representations and warranties of the Company contained herein and in the Subscription Agreements are true and correct and all the terms and conditions relating to the Company contained herein and required to be performed and complied with by the Company at the time of such certificate have been performed and complied with by the Company; and
(vii) no order ceasing or suspending trading in securities of the Company or prohibiting the sale and issuance or distribution of the Shares or Warrants underlying the Units has been issued and no proceedings for such purpose are pending or, to the knowledge of the Company, threatened; and
(e) as at the Closing Date in form satisfactory Time, all covenants, agreements and obligations of the Company hereunder and under the Subscription Agreements required to their counselbe performed or complied with on or before the Closing Time shall have been so performed or complied with and all conditions required to be complied with by the Company shall have been complied with. The certificates described above required to be delivered at the Closing Time will also be addressed and delivered to such persons to whom the Underwriter may resell the Units after the Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:provided they are identified at the Closing Time.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities and the Closing will be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d▇) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPgation of Seller to consummate the sale of the Premises and the Personalty at the Closing is subject to the following conditions:
(i) Buyer shall have performed in all material respects all agreements on its part required to be performed under this Agreement and shall not be in default under any of the provisions of this Agreement;
(ii) Buyer shall have delivered to the Escrow Agent the balance of the Purchase Price referred to in Section 2(b); and
(iii) Buyer shall have delivered an executed counterpart of the Lease to the Title Company.
(b) The obligation of Buyer to consummate the purchase of the Premises at the Closing is subject to the following conditions:
(i) The statements and representations of Seller contained in this Agreement shall be true in all material respects at and as of the Closing as though such statements and representations had been made at and as of the Closing, certifying that:and Seller shall have performed in all material respects all agreements on its part required to be perform under any of the provisions of this Agreement;
(ii) Seller shall have delivered a duly executed copy of the Deed to the Title Company and other Seller's Closing Documents (which in addition to the Deed shall include the Lease executed by Seller, the Certificate of Occupancy for the Premises, evidence of insurance required to be maintained by tenants under the Lease, and any permits or licenses affecting the Premises) to the Title Company;
(iii) Buyer shall have obtained a commitment for an ALTA owners title insurance policy insuring fee simple title to the Premises in the amount of the Purchase Price free and clear of all liens and encumbrances except the Permitted Encumbrances (the "Title Policy"); and
(iv) There shall have occurred no material adverse change in the condition of the Premises or the Seller's financial condition as a whole, nor shall there have been any casualty, condemnation or other material change in the Seller or the Premises.
(c) If the parties fail to consummate this transaction because of non-performance or material breach by Buyer, the Title Company shall deliver the Deposit to Seller as liquidated damages for loss of opportunity of sale of the Premises. If the parties fail to consummate the transaction due to any other reason, the Title Company shall return the Deposit to Buyer. Following the return of the Deposit to Seller or Buyer, as the case maybe, this Agreement shall be terminated and neither party shall have any claim against the other except that if the transaction fails to close as a result of Seller's inability to deliver marketable title or as a result of Seller's breach of the Agreement, Seller shall be obligated to reimburse Buyer for its reasonable out of pocket fees and expenses (up to a maximum of $100,000) incurred in investigating the Premises and negotiating this Agreement and the Lease, including, without limitation, any fees paid to Buyer's proposed lender.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Alpha Technologies Group Inc)
Conditions of Closing. 9.1 The Buyer shall have no obligation to close the purchase and sale of the Purchased Securities Property and may terminate this Agreement and have the Closing will be conditional upon and subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPMoney paid to it unless the following conditions (“Closing Conditions”) are met as of the time of Closing or the Buyer, certifying thatin its discretion, shall have waived any of such conditions:
(a) All covenants and obligations of the Seller under this Agreement to be performed at or prior to Closing shall have been performed.
(b) Subject to the terms of Sections 12 and 13, the Property shall be in substantially the same condition at the Closing as existed on the Effective Date, reasonable wear and tear or damage caused by casualty or the Buyer excepted, and no material adverse change shall have occurred with respect to the operation of the Property after the end of the Inspection Period.
(c) All of the representations and warranties herein shall be true and correct in all material respects at Closing.
(d) There shall not have been instituted and be pending any litigation: (i) alleging that the Property may not be used for office, warehouse and light manufacturing and processing use; (ii) subject to Section 13, alleging material defects (defects which cost more than $50,000.00 to fix) in the physical condition of the Improvements; (iii) that would impair Seller’s right to sell the Property in accordance with the terms of this Agreement; or (iv) that would, if successful, impose a lien or other encumbrance on the Property which cannot be or is not removed by Seller by payment, bonding or otherwise as set forth in Section 4(c).
(e) There shall be no outstanding notices of a material violation with respect to Seller’s operation or ownership of the Property thereof from any governmental authority.
Appears in 1 contract
Sources: Purchase Agreement (Northern Technologies International Corp)
Conditions of Closing. 9.1 The Purchaser has entered into this Bond Purchase Agreement in reliance upon the representations and warranties of the Town and the LGC contained herein and to be contained in the documents and instruments to be delivered at Closing and upon the performance by the Town and the LGC of their respective obligations hereunder, as of the date hereof. Accordingly, the Purchaser’s obligation under this Bond Purchase Agreement to purchase and sale of pay for the Purchased Securities Bond shall be subject to the performance by the Town and the Closing will LGC of their respective obligations to be conditional upon performed hereunder and under such documents and instruments at or prior to Closing, and shall also be subject to the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(a) At the Corporation will have made or obtained time of Closing (i) the necessary filings, approvals, consents representations and acceptances warranties of the appropriate Securities CommissionsTown and the LGC, respectively, contained herein shall be true, complete and correct, (ii) the Order, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Trust Agreement, the issuance of the Purchased SecuritiesSecond Supplemental Agreement and this Bond Purchase Agreement shall be in full force and effect and shall not have been amended, and all matters relating thereto, it being hereby represented modified or supplemented except as may have been agreed to by the Corporation that such authorization Purchaser and approval will be obtained prior to (iii) the Time of Closing;
(c) it Town and the LGC shall have duly adopted and there shall be in full force and effect such resolutions as in the case that, and the Corporation will deliver to the Underwriters a certificate opinion of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, certifying thatRaleigh, North Carolina (“Bond Counsel”), shall be necessary in connection with the transactions contemplated hereby, and such resolutions shall not have been amended, modified or supplemented, except as may have been agreed to by the Purchaser.
(b) On or prior to the date of Closing, the Purchaser shall have received the following documents in form and substance reasonably satisfactory to the Purchaser:
(1) opinion of Bond Counsel, dated as of the date of Closing, addressed to the Purchaser or together with a reliance letter to the Purchaser, in form and substance satisfactory to the Purchaser;
(2) opinion of the Town Attorney, dated as of the date of Closing, in form and substance satisfactory to the Purchaser;
(3) executed counterparts or copies of the Trust Agreement, the Second Supplemental Agreement and this Bond Purchase Agreement;
(4) certified copies all proceedings of the Town relating to approvals or authorizations for the Bond and the execution and delivery of this Bond Purchase Agreement, including the adoption of the Order;
(5) certified copy of approving resolution of the LGC;
(6) tax certificate of the Town and Internal Revenue Service Form 8038-G;
(7) certificate of an authorized officer of the Town to the effect that the fees of the LGC relating to the Bond have been paid;
(8) such other documents as may be required to be delivered pursuant to Section 208 of the Trust Agreement or Section 204 of the Second Supplemental Agreement; and
(9) such additional certificates (including appropriate incumbency and no-litigation certificates), instruments, opinions or other documents as the Purchaser may reasonably request. All representations and warranties of the Town and the LGC set forth in this Bond Purchase Agreement shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of the Purchaser or any person controlling the Purchaser and (ii) acceptance of and payment for the Bond.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of Closing. 9.1 5.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless, at the following conditions being fulfilled at or prior to the Time of Acquisition Closing, which each of the conditions listed below is satisfied, it being understood that the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to said conditions are included for the Time exclusive benefit of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in section 4.3 of this Agreement shall be true and correct in all material respects at the Acquisition Closing Date;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Acquisition Closing shall have been performed and observed in all material respects;
(c) the receipt of any approvals or consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, and all such approvals being in full force and effect;
(d) there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(e) there shall have been no order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
5.2 If any condition in section 5.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors to be made comply with its obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
5.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Purchased Shares pursuant to this Agreement and the other transactions contemplated herein, unless, at the Acquisition Closing, each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors as set out in section 4.1 of this Agreement shall do be true and correct in all that is required, acting reasonably, to assist material respects at the Corporation to fulfill this conditionAcquisition Closing Date;
(b) the directors representations and warranties of the Corporation Company as set out in section 4.2 of this Agreement shall have authorized be true and approved this Agreement, correct in all material respects at the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of ClosingAcquisition Closing Date;
(c) it the covenants and conditions of the Vendor to be performed and observed in this Agreement prior to or at Acquisition Closing shall be have been performed and observed in all material respects;
(d) the case that, Vendors and the Corporation will deliver to Company having entered into and provided all information, forms, certificates, undertakings, agreements and other documents and instruments that may be required by the Underwriters a certificate Exchange;
(e) the receipt of any approvals or consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the Corporation transactions contemplated herein, in form and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation content and the Chief Financial Officer of the Corporation (or upon such officers of the Corporation as may be conditions, if any, acceptable to the UnderwritersPurchaser, and all such approvals being in full force and effect;
(f) addressed the completion of the transactions contemplated herein not constituting a “fundamental change” or a “change of business” for the Purchaser, as defined in the policies of the Exchange;
(g) there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(h) the Board of Directors of the Company shall have approved the transfer of the Purchased Shares contemplated in this Agreement, in accordance with the constating documents of the Company; and
(i) there shall have been no order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
5.4 If any condition in section 5.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the Underwriters and dated Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to the Closing Date Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:the event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase obligation of Seller, on the one hand, and sale of Purchaser, on the Purchased Securities and other hand, to proceed with the Closing will shall be conditional upon and subject to the following following:
a) each representation and warranty of the other Party described in clause 3.2 or 3.3, as the case may be, shall be true as of the Closing Date;
b) no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, governmental agency or legislative body to enjoin, restrain, prohibit or obtain substantial damages in respect of this Agreement or the completion of the transactions contemplated hereby;
c) each Party shall have delivered to the other the documents contemplated in Clauses 3.2 and 3.3 above;
d) Seller on the one hand and Purchaser on the other hand shall have obtained all appropriate authorisations and approvals (if and to the extent required) from any governmental, administrative or judicial authority (a "Governmental Authority") with respect to the execution of this Agreement and the completion of the transactions contemplated hereby and such approval shall not place any materially undue or commercially burdensome provisions on the Company;
e) any and all transactions and conditions being fulfilled at contemplated by this Agreement to be completed and satisfied on or prior to Closing shall have been so completed and satisfied; and
f) Purchaser shall not be obliged to complete the purchase of the Shares agreed to be acquired hereunder unless (x) the purchase of all such Shares is completed simultaneously and (y) simultaneously therewith, the transactions contemplated by the Compagnie Europeenne d'Assurances Industrielles S.A. ("CEAI") Purchase Agreement are consummated. Each of the Parties shall use its reasonable efforts to ensure or procure the satisfaction of the above conditions as soon as practicable after the date hereof. The Parties hereby acknowledge and agree that no Party shall have any liability or obligation to the other in the event that the transactions contemplated hereby shall not be completed because of the failure of any of the foregoing conditions to have been satisfied on or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time except where such failure results from a breach by any Party of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances any of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time provisions of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Enstar Group Inc)
Conditions of Closing. 9.1 The purchase and 4.1 Vendor shall not be obligated to complete the sale of the Purchased Securities and the Closing will be conditional upon and subject Company Share pursuant to the following conditions being fulfilled this Agreement unless, at or prior to before the Time of Closing, which each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to said conditions are included for the Time exclusive benefit of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendor:
(a) the Corporation will representations and warranties of Purchaser in this Agreement shall be true and correct in all material respects at the Closing;
(b) Purchaser shall have performed and complied in all material respects with the terms and conditions in this Agreement on its part to be performed or complied with at or before the Closing and shall have executed and delivered or caused to have been executed and delivered to Vendor at the Closing all the documents, payments and certificates contemplated in section 5.3 and elsewhere in this Agreement;
(c) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement or the Option Agreement;
(d) during the Interim Period there shall not have been any event or change that has had or would be reasonably likely to have a Material Adverse Effect on Purchaser;
(e) Vendor shall have entered into a consulting agreement between Vendor and Purchaser, in a form satisfactory to Vendor and the Company;
(f) the conditions in Section 4.2 of the Option Agreement shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including the approval of the TSX Venture Exchange, for the issuance of 10,000,000 Purchaser Shares at a price of $0.15 per share, through the Subscription Receipts offering announced by the Company on December 2, 2009.
(h) Purchaser shall have made a cash payment to Vendor, by certified cheque, in an amount equal to the fees, expenses and taxes paid or obtained payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the necessary filingspreparation of a technical report on the Property, approvalsand Purchaser shall have made arrangements for the repayment to Vendor, consents and acceptances within 120 days of the appropriate Securities CommissionsClosing Date, of the balance of the Expenses;
(i) Purchaser, the Exchange Company and Altius shall have entered into the NYSE required Assignment Agreement in the form set out in Schedule “B” to be made or obtained by the Corporation prior this Agreement; and
(j) all regulatory approvals and consents to the Time transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including: the approval of the TSX Venture Exchange or any other stock exchange that the securities of Purchaser are listed on or to which an application for listing has been made.
4.2 If any condition in Section 4.1 has not been fulfilled at or before the Closing or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of Vendor to comply with its obligations under this Agreement, then Vendor in order its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, either:
(a) terminate this Agreement by notice to Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other condition.
4.3 Purchaser shall not be obligated to complete the Offering as herein contemplatedtransactions contemplated by this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.3 has been satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall do be true and correct in all that is required, acting reasonably, to assist material respects at the Corporation to fulfill this conditionClosing;
(b) the directors Each of the Corporation Vendor and the Company shall have authorized performed and approved complied in all material respects with the terms and conditions in this Agreement on their respective part to be performed or complied with at or before the Closing and shall have executed and delivered or caused to have been executed and delivered to Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 and elsewhere in this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement or the Option Agreement; and
(d) all regulatory approvals and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the case thatapproval of the TSX Venture Exchange or any other stock exchange that the securities of any of Purchaser are listed on or to which an application for listing has been made.
(e) during the Interim Period there shall not have been any event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(f) the conditions in Section 4.2 of the Option Agreement shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including the approval of the TSX Venture Exchange, for the issuance of 10,000,000 Purchaser Shares at a price of $0.15 per share, through the Subscription Receipts offering announced by the Company on December 2, 2009; and
(h) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement.
4.4 If any condition in section 4.3 shall not have been fulfilled at or before the Closing or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of Purchaser to comply with its obligations under this Agreement, then Purchaser in its sole discretion may, without limiting any rights or remedies available to Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor and the Corporation will deliver Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the Underwriters a certificate event of the Corporation and signed on behalf non-fulfillment of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:any other condition.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase 7.1 Purchaser's Conditions
(a) Purchaser shall be obliged to complete the Transactions only if each of the following conditions precedent has been satisfied in full at or before the Closing Date (each of which conditions precedent is acknowledged to be for the exclusive benefit of Purchaser):
(i) all of the representations and warranties of each of the Vendors made in this Agreement shall be true and correct as at the Closing Date with the same effect as if made at and as of the Closing Date (except as those representations and warranties may be affected by events or transactions (A) expressly permitted by this Agreement, or (B) approved in writing by Purchaser) and without giving effect to any supplements to any disclosure schedules provided after the date hereof;
(ii) all of the representations and warranties of the Corporation made in this Agreement shall be true and correct as at the Closing Date with the same effect as if made at and as of the Closing Date (except as those representations and warranties may be affected by events or transactions (A) expressly permitted by this Agreement, or (B) approved in writing by Purchaser) without giving effect to any supplements to any disclosure schedules provided after the date hereof;
(iii) each Vendor shall have complied with or performed all of the obligations, covenants and agreements under this Agreement to be complied with or performed by said Vendor at or before the Closing Date, including the Vendors' Closing deliveries specified in Section 6.2, to the satisfaction of Purchaser, acting reasonably;
(iv) the Corporation shall have complied with or performed all of the obligations, covenants and agreements under this Agreement to be complied with or performed by the Corporation at or before the Closing Date, including the Corporation's Closing deliveries specified in Section 6.3, to the satisfaction of Purchaser, acting reasonably;
(v) all Consents described in Schedule 3.2(c) shall have been obtained, in each case in form and substance satisfactory to Purchaser, acting reasonably or waived by Purchaser;
(vi) all documentation relating to the Transactions is satisfactory to Purchaser, acting reasonably, including the Escrow Agreement and the escrow of the Escrow Shares and the Deposit, as hereinafter defined, for the purposes of securing some of the indemnities by Designated Vendors hereto has been duly made;
(vii) there shall be no injunction or restraining order issued preventing, and no pending or threatened claim, against any Party, for the purpose of enjoining or preventing, the completion of the Transactions or otherwise claiming that this Agreement or the completion of the Transactions is improper or would give rise to a claim under any applicable law;
(viii) no applicable law shall have been enacted, introduced or announced which may have a Material Adverse Effect;
(ix) there shall have been no Material Adverse Change since the Balance Sheet Date;
(x) the sale and delivery of the Ramtron Stock to the Designated Vendors is exempt from the requirement to file a prospectus and the requirement to deliver an offering memorandum under any applicable statute relating to the sale of the Purchased Securities and Ramtron Stock or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the requirement of filing a prospectus or delivering an offering memorandum.
(b) If any of the conditions in Section 7.1(a)shall not be satisfied or fulfilled in full at or before the Closing will be conditional upon and subject Time to the following conditions being fulfilled satisfaction of Purchaser, Purchaser in its sole discretion may, without limiting any rights or remedies available to Purchaser at law or prior in equity, either:
(i) terminate this Agreement by notice in writing to the Time of ClosingVendors, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior except with respect to the Time of Closing obligations contained in Sections 8.1 and 9.5 which conditions in paragraphs shall survive that termination; or
(c), (dii) and (e) may be waived in writing waive compliance with any such condition in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior notice in writing to the Time Vendors, except that no such waiver shall operate as a waiver of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this any other condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:.
Appears in 1 contract
Sources: Share Purchase Agreement (Ramtron International Corp)
Conditions of Closing. 9.1 The Purchaser's obligations to purchase and sale of the Purchased Securities and the Closing will be conditional upon and Bonds are subject to fulfillment of the following conditions being fulfilled at or before Closing:
(a) The representations of the Issuer and the Tenant hereunder must be true on and as of the Issue Date and must be confirmed by certificates dated as of the Closing;
(b) Neither the Issuer nor the Tenant has defaulted in the performance of any of their respective covenants hereunder;
(c) The Purchaser must receive at the Closing:
(i) an opinion of Bond Counsel, dated as of the Closing; in form and substance satisfactory to the Purchaser and its counsel;
(ii) an opinion of counsel for the Tenant, dated as of the Closing, in form and substance satisfactory to Bond Counsel and to the Purchaser and its counsel confirming the Tenant's representations as set forth in paragraphs (b) through (e) inclusive of Section 5 of this Bond Purchase Agreement;
(iii) an opinion of counsel for the Issuer, dated as of the Closing, in form and substance satisfactory to Bond Counsel and to the Purchaser and its counsel, confirming the Issuer's representations set forth in paragraphs (a) through (f) inclusive of Section 4 of this Bond Purchase Agreement;
(iv) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser and its counsel, of an authorized official of the Issuer dated the date of the Closing to the effect that (A) each of the representations of the Issuer set forth in Section 4 hereof is true, accurate and complete in all material respects as of the Closing, and each of the agreements of the Issuer set forth in this Bond Purchase Agreement to be complied with at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) has been complied with; and (eB) may be waived in writing in whole no litigation is pending, or in part by to such official's knowledge, threatened, to restrain or enjoin the Underwriters:
(a) the Corporation will have made issuance or obtained the necessary filings, approvals, consents and acceptances delivery of the appropriate Securities CommissionsBonds, or contesting or questioning the validity of the Bonds, the Exchange proceedings or authority under which they are issued, the existence of the Issuer, the authority of the Issuer to enact the Ordinance or enter into the Indenture, the Project Lease or the Bond Purchase Agreement, or the Issuer's pledge of the Project, the revenues therefrom and the NYSE required to be made or obtained by Trust Estate under the Corporation prior to Indenture as security for the Time of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors payment of the Corporation shall have authorized and approved this AgreementBonds, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:and
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of Closing. 9.1 The purchase and sale of the Purchased Securities and the Closing will be conditional upon and Units is subject to the following conditions being fulfilled at or prior accuracy of the representations and warranties of the parties hereto, to the Time performance by such parties of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior their respective obligations hereunder and to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersfollowing further conditions:
(a) The Registration Statement shall have become effective and at each Closing Date no order suspending the Corporation will effectiveness thereof shall have made been issued under the 1933 Act or obtained proceeding therefor initiated or threatened by the necessary filingsSEC, approvals, consents and acceptances of the appropriate Securities Commissions, the Exchange and the NYSE required NFA shall have accepted the Prospectus as a Disclosure Document pursuant to be made or obtained by the Corporation prior to the Time CFTC Regulations and NFA Rules without a finding of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;further deficiencies.
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained At or prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Initial Closing Date in form satisfactory to their counselDate, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ LLP▇▇▇▇▇▇▇▇ counsel to the General Partner, certifying shall deliver its opinion, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Fund is a limited partnership existing under the laws of the State of Illinois with full partnership authority to conduct the business in which it engages as described in the Registration Statement, the Prospectus and herein.
(ii) The General Partner is a limited liability company existing and in good standing under the laws of the State of Illinois. The General Partner has limited liability company authority to perform its obligations as described in the Registration Statement, the Prospectus and herein.
(iii) This Agreement has been duly authorized, executed and delivered by the Fund and the General Partner and the performance by the Fund and the General Partner of the transactions contemplated herein and set forth in the Prospectus will not, to the knowledge of such counsel, result in a breach or violation of any of the terms or provisions of or constitute a default under (i) any material contracts, indentures, deeds of trust, loan agreements, notes, leases or other agreements as listed on an exhibit to such opinion (the "MATERIAL CONTRACTS"), (ii) the General Partner's certificate of formation or limited liability company operating agreement, (iii) any laws or administrative rules or regulations normally applicable to transactions of the type contemplated hereby or in the Prospectus, or (iv) any order, writ, injunction or decree known to such counsel of any court or any governmental body or administrative agency having jurisdiction over the General Partner or the Fund.
(iv) The Limited Partnership Agreement has been duly authorized, executed and delivered by the General Partner and constitutes a valid and binding obligation of the General Partner enforceable against the General Partner, subject to the effects of: (1) bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, receivership, moratorium and other similar laws (including judicially developed doctrines with respect to such laws) affecting the rights and remedies at the time in effect affecting the enforceability of creditors generally; (2) general principals of equity, whether applied by a court of law or equity with respect to performance and enforcement of the Limited Partnership Agreement; and (3) any limitations under federal securities laws and other applicable laws and considerations of public policy that relate to indemnification and contribution. The execution and delivery of the Limited Partnership Agreement, and the incurrence of the obligations therein and the consummation of the transactions contemplated therein will not result in a breach or violation of any of the terms or provisions of or constitute a default under (i) any Material Contracts, (ii) the General Partner's certificate of formation or limited liability company operating 15 agreement, (iii) any laws or administrative rules or regulations normally applicable to transactions of the type contemplated thereby, or (iv) any order, writ, injunction or decree known to such counsel of any court or any governmental body or administrative agency having jurisdiction over the General Partner or the Fund.
(v) No filing, order, authorization, approval or consent of any court, governmental or self-regulatory agency or body is necessary in connection with the subscription for and sale of the Units, except such as may be required under the 1933 Act, the Commodity Act, the NFA Rules, NASD rules and applicable state securities or "Blue Sky" laws.
(vi) Assuming that all action required to be taken by the General Partner and the Fund as a condition to the subscription for and sale of the Units to qualified subscribers therefor has been taken, and, upon payment of the consideration therefor specified in the accepted Subscription Agreements and Powers of Attorney and satisfaction of all applicable subscription requirements by such subscribers, the Units will constitute valid units of limited partnership interest in the Fund, and each subscriber who purchases Units will become a Limited Partner with limited personal liability to the extent provided for under the Illinois Act.
(vii) The information in the Prospectus under the caption "U.S. Federal Income Tax Consequences," to the extent that such information constitutes matters of law or legal conclusions, has been reviewed by such counsel and is correct in all material respects, insofar as it relates to the income tax consequences to the Fund and to the federal income tax consequences of an investment in the Fund by U.S. individual taxpayers.
(viii) The Registration Statement is effective under the 1933 Act and, to the knowledge of such counsel, no proceeding for a stop order is pending or threatened under Section 8(d) or Section 8(e) of the 1933 Act or any applicable state "Blue Sky" laws.
(ix) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus and any amendments or supplements thereto were first issued, the Prospectus (other than the financial statements and notes thereto and other financial and statistical data or past performance information included therein, as to which such counsel need render no opinion), complied as to form in all material respects with the requirements of the 1933 Act, SEC Regulations, the Commodity Act, the CFTC Regulations and the NFA Rules.
(x) Assuming operation in accordance with the Prospectus, the Fund will not be an "investment company" or a company "controlled" by an "investment company" as those terms are defined in the Investment Company Act of 1940, and the General Partner need not be registered as an "investment adviser" under the Investment Advisers Act of 1940 in respect of its management of the Fund. Such counsel shall state that it has participated in conferences with officers and other representatives of the General Partner and representatives of the independent public accountants for the General Partner and the Fund, at which conferences such counsel made inquiries of such officers, representatives and accountants and discussed the contents of the Registration Statement and the Prospectus, and no facts have come to the attention of such counsel which cause them to believe that either the Registration Statement or any amendment thereto, at the time such Registration Statement or amendment became effective, or the Prospectus or any amendment or supplement thereto, as of the date of such opinion contained any untrue statement of a material fact or omitted to state a material fact stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and notes thereto and other financial and statistical data or past performance information included therein). Such counsel shall also state that to the knowledge of such counsel, based solely on its review of its litigation docket and an officer's certificate from the General Partner: there are no legal or governmental proceedings pending to which the Fund or the General Partner is a party, that are required to be described in the Registration Statement or the Prospectus that are not so described; and to such counsel's knowledge no such proceedings are threatened by governmental authorities or others.
(c) At or prior to the Initial Closing Date, the Fund shall have received a capital contribution of the General Partner in the amount required by its Limited Partnership Agreement and as described in the Prospectus.
(d) At or prior to the Initial Closing Date, executed copies of the Limited Partnership Agreement and this Agreement shall be delivered to the parties hereto.
(e) The parties hereto shall have been furnished with such additional information, opinions and documents, including supporting documents relating to parties described in the Prospectus and certificates signed by such parties with regard to information relating to them and included in the Prospectus as they may reasonably require for the purpose of enabling them to pass upon the sale of the Units as herein contemplated and related proceedings, in order to evidence the accuracy or completeness of any of the representations or warranties or the fulfillment of any of the conditions herein contained; and all actions taken by the parties hereto in connection with the sale of the Units as herein contemplated shall be reasonably satisfactory in form and substance to ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the General Partner, and to the Selling Agent. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement to be fulfilled prior to a Closing Date, this Agreement and all obligations hereunder may be cancelled by any party hereto by notifying the other parties hereto of such cancellation in writing or by facsimile at any time at or prior to such Closing Date, and any such cancellation or termination shall be without liability of any party to any other party other than in respect of Units already sold and except as otherwise provided in Sections 6 and 8 of this Agreement.
Appears in 1 contract
Sources: Selling Agreement (Grant Park Futures Fund Limited Partnership)
Conditions of Closing. 9.1 6.1 The purchase and Vendors shall not be obligated to complete the sale of the Purchased Securities Vendors Shares pursuant to this Agreement and the Closing will be conditional upon and subject to other transactions contemplated herein, unless each of the following conditions listed below is satisfied, it being fulfilled at or prior to understood that the Time said conditions are included for the exclusive benefit of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the UnderwritersVendors:
(a) the Corporation will representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing, except those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the covenants and conditions of the Purchaser to be performed and observed in this Agreement prior to or at Closing shall have been performed and observed;
(c) the receipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Company, and all such approvals being in full force and effect, including the approval of the Exchange;
(d) the Purchaser shall have changed its name to “▇▇▇▇ Ventures Corp.”, or such other name as is acceptable to the Company;
(e) the Purchaser shall have completed a private placement of equity securities to arm’s length investors for gross proceeds of not less than $3,500,000 at an issue price of not less than $0.30 per Purchaser Share (or its equivalent) (the “Purchaser Financing”);
(f) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Purchaser; and
(g) during the Interim Period, there shall have been no Order made or obtained any Legal Proceedings commenced or threatened for the necessary filingspurpose, approvalsor which could have the effect, consents and acceptances of preventing or restraining the completion of the appropriate Securities Commissionstransactions contemplated by this Agreement.
6.2 If any condition in section 6.1 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the Exchange and failure of the NYSE required Vendors or the Company to be made comply with their obligations under this Agreement, then the Vendors may, without limiting any rights or obtained by the Corporation prior remedies available to the Time Vendors at law or in equity, either:
(a) terminate this Agreement by notice to the Purchaser; or
(b) waive compliance with any such condition without prejudice to its right of Closing termination in order the event of the non-fulfillment of any other condition for its benefit.
6.3 The Purchaser shall not be obligated to complete the Offering as herein contemplatedpurchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated herein, unless each of the conditions listed below is satisfied, it being understood that the Underwriters said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of the Vendors and the Company in this Agreement shall do be true and correct in all that is requiredmaterial respects at the Closing, acting reasonably, to assist the Corporation to fulfill this conditionexcept those representations and warranties qualified by a materiality qualification which shall be true and correct in all respects;
(b) the directors covenants and conditions of the Corporation Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have authorized been performed and approved this Agreement, the issuance of the Purchased Securities, and observed in all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;material respects;
(c) it shall be the case thatreceipt of any Consents contemplated by this Agreement or otherwise necessary for this Agreement and the completion of the transactions contemplated herein, in form and content and upon such conditions, if any, acceptable to the Purchaser, and all such approvals being in full force and effect, including the Corporation will deliver approval of the Exchange;
(d) during the Interim Period, there shall have been no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(e) the assets of the Company being free of all Adverse Interests, unless otherwise agreed by the Purchaser;
(f) the Company having delivered to the Underwriters a certificate Purchaser its financial statements, both audited and unaudited as applicable, for the periods required pursuant to applicable regulatory policies and the Exchange, for inclusion in any disclosure document or other filing required by applicable regulatory authorities;
(g) all obligations and other contractual commitments of the Corporation and signed on behalf Company being in good standing in respect of the Corporation by Business, including without limitation the Chief Executive Officer or an executive officer non-termination of any material contracts and permits, including the Corporation Colombian Licence, and intellectual property required in connection with the Chief Financial Officer of Business;
(h) the Corporation (or Vendors having entered into such officers of the Corporation escrow arrangements as may be acceptable required by the Exchange;
(i) the Purchaser having received evidence of satisfaction of all applicable listing requirements of the Exchange in connection with the business of the Company;
(j) the Board of Directors of the Company shall have approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of Incorporation of the Company; and
(k) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
6.4 If any condition in section 6.3 hereof has not been fulfilled or if any such condition is or becomes impossible to satisfy, other than as a result of the failure of the Purchaser to comply with its obligations under this Agreement, then the Purchaser may, without limiting any rights or remedies available to the UnderwritersPurchaser at law or in equity, either:
(a) addressed terminate this Agreement by notice to the Underwriters and dated Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:event of the non-fulfillment of any other condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 9.1 The Underwriters' obligation to purchase and sale of the Purchased Securities and any Initial Units at the Closing will Time shall be conditional upon and subject to the fulfilment at or before the Closing Time of the following conditions being fulfilled at or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwritersconditions:
(a) the Corporation will Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, certifying for and on behalf of the Company that:
(i) no order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Company (including the Common Shares) has been issued by any Governmental Entity and is continuing in effect and no proceedings for that purpose have been instituted or are pending or are contemplated or threatened by any Governmental Entity;
(ii) to the knowledge of such officers, after due enquiry, there has been no adverse material change (actual, proposed or prospective, whether financial or otherwise) in the condition (financial or otherwise), properties, assets, liabilities (contingent or otherwise), obligations (whether absolute, accrued, conditional or otherwise), business, affairs, capital, ownership, control, management, operations, results of operations or prospects of the Company and its subsidiaries, on a consolidated basis, since the date hereof;
(iii) the Prospectus (except the Underwriters Information) complies with Canadian Securities Laws, does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Company, the Offering, the Offered Securities, the Over-Allotment Option and the Broker Securities as required by Canadian Securities Laws;
(iv) the Company has duly complied with all the terms, covenants and conditions of this Agreement on its part to be complied with up to the Closing Time; and
(v) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement, except in respect of any representations and warranties that are to be true and correct as of a specified date, in which case they were true and correct as of that date;
(b) the Underwriters shall have received at the Closing Time a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company, or such other officers of the Company as the Underwriters may agree, addressed to the Underwriters with respect to the notice of articles and articles of the Company, all resolutions of the Company's board of directors and, as applicable, shareholders relating to the Transaction Documents and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers of the Company and such other matters as the Underwriters may reasonably request;
(c) the Company shall have made or and/or obtained the all necessary filings, approvals, permits, consents and acceptances authorizations to or from, as the case may be, the board of directors and shareholders of the appropriate Securities CommissionsCompany, the Exchange and Securities Regulators, the TSXV, the NYSE and any other applicable person required to be made or obtained by the Corporation prior Company in connection with the transactions contemplated by this Agreement, on terms which are acceptable to the Time Underwriters, acting reasonably;
(d) the Unit Shares, the Warrant Shares, and the Broker Warrant Shares shall have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV;
(e) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing in order Date, from Forooghian + Company Law Corporation, counsel to complete the Offering as herein contemplatedCompany, and where appropriate local counsel to the Company (it being understood that such counsel may rely to the extent appropriate in the circumstances (i) as to matters of fact, on certificates of the Company executed on its behalf by a senior officer of the Company and on certificates of the transfer agent and registrar of the Company, as to the issued capital of the Company, and (ii) as to matters of fact not independently established, on certificates of the Company's Auditors or a public official), such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters shall do all that is requiredand their counsel, acting reasonably, with respect to assist the Corporation following matters:
(i) as to fulfill this conditionthe incorporation and subsistence of the Company under the laws of the Province of British Columbia and as to the corporate power and capacity of the Company to enter into and carry out its obligations under the Transaction Documents and to issue and sell the Offered Securities, grant the Over-Allotment Option and issue the Warrant Shares and Broker Securities;
(bii) as to the authorized and issued capital of the Company;
(iii) the directors Company has all requisite corporate power and capacity under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets as described in the Prospectus;
(iv) the execution and delivery of the Corporation shall have authorized Transaction Documents, the performance by the Company of its obligations thereunder, the sale and approved this Agreementissuance of the Offered Securities, the grant of the Over-Allotment Option and the issuance of the Purchased Warrant Shares and Broker Securities, do not and will not conflict with or result in any breach of the notice of articles and articles of the Company, any resolutions of the shareholders or directors (including committees of the board of directors) of the Company, any applicable corporate laws or any Canadian Securities Laws;
(v) each of the Transaction Documents have been duly authorized and executed and delivered by the Company, and constitute valid and legally binding obligations of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, liquidation, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and the qualification that the enforceability of rights of indemnity and contribution may be limited by applicable law;
(vi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Base Shelf Prospectus and the Prospectus Supplement and the filing thereof with the Securities Regulators, the filing of the Marketing Document with the Securities Regulators and the delivery of the U.S. Private Placement Memorandum;
(vii) the Unit Shares, other than the Over-Allotment Unit Shares issuable at any Option Closing Time, have been duly and validly issued as fully paid and non-assessable Common Shares;
(viii) the Warrants have been duly and validly created and, other than the Warrants issuable at any Option Closing Time, issued;
(ix) the Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Warrants in accordance with the provisions of the Warrant Indenture, the Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(x) the Broker Warrants have been duly and validly created and, other than the Broker Warrants issuable at any Option Closing Time, issued;
(xi) the Broker Warrant Shares have been reserved and authorized and allotted for issuance and upon the receipt of payment therefor by the Company and the issue thereof upon exercise of the Broker Warrants in accordance with the provisions of the Broker Warrant Certificates, the Broker Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(xii) all necessary corporate action has been taken by the Company to authorize the issuance of the Additional Securities, subject to receipt of payment in full for them, and the issuance of the additional Broker Warrants, and when issued and delivered, the Additional Securities and the additional Broker Warrants will be duly and validly issued by the Company and the Over-Allotment Unit Shares will be outstanding as fully paid and non-assessable Common Shares;
(xiii) the rights, privileges, restrictions and conditions attaching to the Offered Securities, the Warrant Shares, the Over-Allotment Option and the Broker Securities conform in all material respects with the description thereof set forth in the Prospectus;
(xiv) all necessary documents have been filed, all requisite proceedings have been taken and all matters relating theretoapprovals, it being hereby represented permits, consents and authorizations of the Securities Regulators in each of the Qualifying Jurisdictions have been obtained by the Corporation that such authorization Company to qualify the distribution to the public of the Offered Securities in each of the Qualifying Jurisdictions through persons who are registered under Canadian Securities Laws and to qualify the grant of the Over-Allotment Option and the issuance of the Broker Warrants to the Underwriters;
(xv) the issuance by the Company of the Warrant Shares upon the due exercise of the Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions in connection therewith;
(xvi) the issuance by the Company of the Broker Warrant Shares upon the due exercise of the Broker Warrants is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions in connection therewith;
(xvii) the first trade in, or resale of, the Warrants Shares or the Broker Warrant Shares is exempt from, or is not subject to, the prospectus requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade or resale, provided that the trade or resale is not a "control distribution" (as defined in National Instrument 45-102 - Resale of Securities);
(xviii) the Unit Shares, the Warrant Shares, and Broker Warrant Shares have been conditionally approved for listing and posting for trading on the TSXV, subject only to satisfaction by the Company of certain standard post-closing conditions imposed by the TSXV; and
(xix) as to such other matters as the Underwriters' legal counsel may reasonably request prior to the Time of ClosingClosing Time;
(cf) it shall be the case that, and the Corporation will deliver to the Underwriters shall have received a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable favourable legal opinion addressed to the Underwriters, dated the Closing Date, from Forooghian + Company Law Corporation, as to: (i) addressed the incorporation and subsistence of Canam and Vizsla Royalty, (ii) the corporate power and capacity of Canam and Vizsla Royalty under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Canam and Vizsla Royalty and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(g) the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date in form satisfactory to their counselDate, from ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:tax counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that the statements and opinions concerning tax matters set forth in the Prospectus Supplement under the headings "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations" insofar as they purport to describe the provisions of the laws referred to therein are fair and adequate summaries of the matters discussed therein subject to the qualifications, assumptions and limitations set out under such heading;
(h) if any Offered Securities are offered and sold to U.S. Purchasers pursuant to Schedule "A" attached hereto, the Underwriters shall have received a favourable legal opinion addressed to the Underwriters, dated the Closing Date, from ▇▇▇▇▇ LPC, special United States counsel to the Company, such opinion to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, to the effect that no registration of the Offered Securities offered and sold to U.S. Purchasers will be required under the U.S. Securities Act in connection with such offer and sale, provided that the offer and sale of the Offered Securities to U.S. Purchasers is made in accordance with Schedule "A" attached hereto; provided that it being understood that no opinion is expressed as to any subsequent resale of any of the Offered Securities;
(i) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, such opinions to be subject to standard qualifications and assumptions and in form satisfactory to the Underwriters and its counsel, acting reasonably, as to title to the mineral concessions comprising the Panuco Property;
(j) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, dated the Closing Date, from ALN Abogados Consultores, Mexican counsel to the Company, with respect to (i) the incorporation and subsistence of Minera Canam and Canam Royalties, (ii) the corporate power and capacity of Minera Canam and Canam Royalties under the laws of its jurisdiction of existence to carry on its business as presently carried on and to own, lease and operate its properties and assets, and (iii) the authorized and issued capital of Minera Canam and Canam Royalties and the ownership thereof, in a form satisfactory to the Underwriters and its counsel, acting reasonably;
(k) the Underwriters shall have received from the Company's Auditors a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 4(a)(iv);
(l) the Underwriters shall have received executed copies of all the lock-up agreements requested by the Underwriters pursuant to Section 6(l) in form and substance satisfactory to the Underwriters, acting reasonably;
(m) the Underwriters shall have received certificates of good standing or similar certificates with respect to the jurisdiction in which the Company, Canam, Vizsla Royalty, Minera Canam and Canam Royalties are existing;
(n) the Underwriters shall have received a certificate from the transfer agent and registrar of the Company as to the issued and outstanding Common Shares as at the close of business on the Business Day prior to the Closing Date; and
(o) the Underwriters shall have received such other documents as the Underwriters or its counsel may reasonably request prior to the Closing Time.
Appears in 1 contract
Conditions of Closing. 9.1 The purchase obligation of Seller, on the one hand, and sale of Purchaser, on the Purchased Securities and other hand, to proceed with the Closing will shall be conditional upon and subject to the following following:
a) each representation and warranty of the other Party described in clause 3.2 or 3.3, as the case may be, shall be true as of the Closing Date;
b) no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, governmental agency or legislative body to enjoin, restrain, prohibit or obtain substantial damages in respect of this Agreement or the completion of the transactions contemplated hereby;
c) each Party shall have delivered to the other the documents contemplated in Clauses 3.2 and 3.3 above;
d) Seller on the one hand and Purchaser on the other hand shall have obtained all appropriate authorisations and approvals (if and to the extent required) from any governmental, administrative or judicial authority (a "Governmental Authority") with respect to the execution of this Agreement and the completion of the transactions contemplated hereby and such approval shall not place any materially undue or commercially burdensome provisions on the Company;
e) any and all transactions and conditions being fulfilled at contemplated by this Agreement to be completed and satisfied on or prior to Closing shall have been so completed and satisfied; and
f) Purchaser shall not be obliged to complete the purchase of the Shares agreed to be acquired hereunder unless (x) the purchase of all such Shares is completed simultaneously and (y) simultaneously therewith, the transactions contemplated by the Brittany Insurance Company Limited ("BICL") Purchase Agreement are consummated. Each of the Parties shall use its reasonable efforts to ensure or procure the satisfaction of the above conditions as soon as practicable after the date hereof. The Parties hereby acknowledge and agree that no Party shall have any liability or obligation to the other in the event that the transactions contemplated hereby shall not be completed because of the failure of any of the foregoing conditions to have been satisfied on or prior to the Time of Closing, which conditions the Corporation covenants to exercise its reasonable best efforts to have fulfilled at or prior to the Time except where such failure results from a breach by any Party of Closing and which conditions in paragraphs (c), (d) and (e) may be waived in writing in whole or in part by the Underwriters:
(a) the Corporation will have made or obtained the necessary filings, approvals, consents and acceptances any of the appropriate Securities Commissions, the Exchange and the NYSE required to be made or obtained by the Corporation prior to the Time provisions of Closing in order to complete the Offering as herein contemplated, it being understood that the Underwriters shall do all that is required, acting reasonably, to assist the Corporation to fulfill this condition;
(b) the directors of the Corporation shall have authorized and approved this Agreement, the issuance of the Purchased Securities, and all matters relating thereto, it being hereby represented by the Corporation that such authorization and approval will be obtained prior to the Time of Closing;
(c) it shall be the case that, and the Corporation will deliver to the Underwriters a certificate of the Corporation and signed on behalf of the Corporation by the Chief Executive Officer or an executive officer of the Corporation and the Chief Financial Officer of the Corporation (or such officers of the Corporation as may be acceptable to the Underwriters) addressed to the Underwriters and dated the Closing Date in form satisfactory to their counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, certifying that:.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (Enstar Group Inc)