Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor: (a) the 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses; (i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and (j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser: (a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing; (b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated Unless waived in writing by Purchaser, the obligation of Purchaser to complete purchase the sale of Shares is subject to the Company Share pursuant to this Agreement unlesssatisfaction in all material respects, at on or before the Closing, each of the following conditions listed below and of any other conditions otherwise enumerated in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of VendorAgreement:
(a) the Seller's representations and warranties of Purchaser in this Agreement shall be true and correct Section 4 above are accurate in all material respects at the Closingrespects;
(b) Purchaser Seller shall have performed in all material respects all obligations and complied in all material respects with the terms and conditions in this Agreement on its part all covenants required to be performed or to be 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 by them under this Agreement;
(c) during the Interim Period, there Purchaser shall have been no Order registered with the SEC and made or any Legal Proceedings commenced or threatened for all appropriate filings necessary to own a majority shareholding interest in 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 AgreementCompany;
(d) during Neither the Interim Period there Company nor the SEC shall not have been delivered any event notice or change that has had expressed any other objection to the purchase and sale of the Shares or would be reasonably likely to have a Material Adverse Effect on Purchaserany other matter contemplated by this Agreement;
(e) Vendor Purchaser shall have entered into a consulting agreement between Vendor and Purchaser, in a form satisfactory transferred the Purchase Price to Vendor and the CompanySeller;
(f) Seller shall have notified the conditions in Section 4.2 Company and its transfer agents of the Option Agreement shall have been satisfiedsale and purchase of the Shares;
(g) Purchaser shall and Seller will have obtained all necessary corporate authorization cooperated 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, collaborated in an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, press release and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to public statement regarding this Agreement; and
(jh) all regulatory approvals and consents 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 transactions contemplated by consequence of which is that, or with notice or lapse of time or both the consequence of which would be that, any of the 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 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 through 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 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 transactions contemplated by this Agreement unlessevent, at action, omission, occurrence or before the Closingsituation which Seller has stated, each of the conditions listed below in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties contained in Section 4, it has no knowledge of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each as of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 date 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale (a) The obligations of the Company Share pursuant hereunder in connection with the Closing are subject to this Agreement unless, at or before the Closing, each of the following conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendormet:
(ai) 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 Purchaser the Subscriber contained herein (unless as of a specific date therein in this Agreement which case they shall be true accurate as of such date);
(ii) all obligations, covenants and correct agreements of the Subscriber required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by the Subscriber of the 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 at (or, to the Closingextent 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 case they shall be accurate as of such date);
(bii) Purchaser shall have performed all obligations, covenants and complied in all material respects with agreements of the terms and conditions in this Agreement on its part Company required to be performed or complied with at or before prior to the Closing and Date shall have executed and delivered or caused to have been executed and delivered to Vendor at performed;
(iii) the Closing all delivery by the documents, payments and certificates contemplated Company of the items set forth in section 5.3 and elsewhere in Section 4(a) of this Unit Purchase Agreement;
(civ) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for Material Adverse Effect with respect to the purpose, or which could have Company since the effect, of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement or the Option Agreementdate hereof;
(dv) during the Interim Period there Unit Shares (I) shall be listed on the TSXV and (II) 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 Purchasersuspended, 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days as of the Closing Date, by the Canadian Securities Administrators or 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 balance Closing Date nor shall the Company have failed to meet the minimum listing maintenance requirements of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this AgreementTSXV; and
(jvi) all regulatory approvals and consents to the transactions contemplated by this Agreement TSXV Approval 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 madeobtained.
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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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: Unit Purchase Agreement
Conditions of Closing. 4.1 Vendor 6.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 shall have to be performed and complied in all material respects with the terms and conditions observed in this Agreement on its part prior to be performed or complied with at or before the Closing and shall have executed been performed 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 Agreementobserved;
(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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 6.2 If any condition in Section 4.1 section 6.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each all outstanding securities of the Vendor Company convertible into Company Shares shall have been cancelled, including the Vendors Warrants and the Vendors Options, and the Company shall not 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 any convertible securities outstanding 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 AgreementClosing;
(c) 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;
(d) 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;
(e) 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 approval 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 Board of Directors of the Option Agreement Company shall have been satisfied;approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of the Company; and
(g) Purchaser during the Interim Period, there shall have obtained all necessary corporate authorization and regulatory approvalbeen no Order made or any Legal Proceedings commenced or threatened for the purpose, including or which could have the approval effect, of preventing or restraining the completion 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 transactions contemplated 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 6.4 If any condition in section 4.3 shall 6.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Purchase Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale 7.1 The obligation of the Company Share pursuant Purchaser to this Agreement unless, at purchase the Debentures contemplated hereby will be subject to the fulfilment on or before the Closing, each Closing of the conditions listed below following terms and conditions, compliance with which may be waived in this section 4.1 has been satisfied, whole or in part by the Purchaser in its discretion and upon such terms as it being understood that the said conditions are included for the exclusive benefit of Vendormay consider appropriate:
(a) the representations and warranties of Purchaser in this Agreement shall the Companies contained herein will be true and correct 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 ClosingCompanies will have delivered to the Purchaser a certificate, in form and substance satisfactory to the Purchaser, reaffirming such representations and warranties;
(b) Purchaser there has not occurred any adverse material changes in the affairs or prospects of the Company 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 in with all material respects with the terms covenants, agreements and conditions in this Agreement on its part required hereby to be performed or complied with at or before by the Closing and shall have executed and delivered or caused Companies prior 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 CompanyClosing;
(f) the conditions in Section 4.2 Exchange will have issued its final acceptance of the Option Agreement shall have been satisfiedissuance of the Securities as contemplated by the terms of this Agreement;
(g) Purchaser shall no order (draft or otherwise), judgment, injunction, decree, award or writ of any court, tribunal, arbitrator, government agency or other person will have obtained all necessary corporate authorization and regulatory approvalbeen entered that prohibits or restricts the Closing or which, including in the approval opinion of the TSX Venture ExchangePurchaser, for the issuance acting reasonably, could prevent or restrict any party hereto from performing any 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.its obligations hereunder; and
(h) the Purchaser shall will have made received a cash payment to Vendor, by certified cheque, favourable written opinion of the Company’s counsel dated the date of Closing satisfactory in an amount equal scope and substance to the fees, expenses Purchaser and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days its counsel acting reasonably.
7.2 The obligation of the Companies to complete the subscription contemplated hereby will be subject to the fulfilment on or before Closing Date, of the balance of following terms and conditions, compliance with which may be waived in whole or in part by the Expenses;Company in its discretion and upon such terms as it may consider appropriate:
(ia) Purchaserthe Purchaser or, if applicable, the Company and Altius shall have entered into Disclosed Principal, as the Assignment Agreement in case may be, has delivered to the form set out in Companies a fully executed copy of this Agreement, including Schedule “B” and Schedule “C”;
(b) the representations and warranties of the Purchaser contained herein will be true in all material respects on and as of Closing 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 up to and including the Closing;
(d) the Exchange will have issued its final acceptance of the issuance of the Securities contemplated by the terms of this Agreement; and
(je) all regulatory approvals and consents to the transactions contemplated by this Agreement shall no order (draft or otherwise), judgment, injunction, decree, award or writ of any court, tribunal, arbitrator, governmental agency or other person will have been obtained and be in full force and effect, including: the approval of the TSX Venture Exchange entered that prohibits 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 restricts the Closing or if any such condition is or becomes impossible to satisfywhich, other than as a result in the opinion of the failure Company, acting reasonably, could prevent or restrict any party hereto from performing any of Vendor to comply with its obligations under this Agreement, then Vendor in 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 conditionhereunder.
4.3 Purchaser 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 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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: Private Placement Subscription Agreement (Wex Pharmaceuticals Inc.)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligation of the Company Share pursuant Lenders to this Agreement unless, at or before make the Closing, each of initial Loans requested to be made by it is subject to the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorprecedent that:
(a) the representations Agent shall have received on the Closing Date, in form and warranties substance satisfactory to the Agent, the following:
(i) executed originals of Purchaser in each of this Agreement shall be true Agreement, any Notes requested prior to the Closing Date and correct in the other Loan Documents, together with all material respects at the Closingschedules and exhibits thereto;
(bii) Purchaser shall have performed the favorable written opinion or opinions with respect to the Loan Documents 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;
thereby of (di) 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 PurchaserCandace S. Cummings, in a form satisfactory to Vendor and the Company;
(f) the conditions in Section 4.2 Vice President & General Counsel 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 payable to WGuara▇▇▇▇, G(▇▇) ▇▇▇▇▇ ▇▇lk & Wardwell, special counsel to the Guarantor, (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;
(▇▇▇) ▇▇sol▇▇▇▇▇▇ ▇f the board of directors or other appropriate governing body (or of the appropriate committee thereof) of the Guarantor and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days each Borrower certified by such entity's secretary or assistant secretary or any Authorized Representative of such entity as of the Closing Date, of approving and adopting the balance of Loan Documents to be executed by the ExpensesGuarantor and each Borrower, as applicable, and authorizing the execution and delivery thereof;
(iiv) Purchaserspecimen signatures of officers or other appropriate representatives executing the Loan Documents on behalf of the Guarantor and each Borrower, certified by the Company secretary or assistant secretary or any Authorized Representative of the Guarantor and Altius shall have entered into each Borrower, as applicable;
(v) the Assignment Agreement 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 (A) as of the Closing Date, each of the representations and warranties set out forth in Schedule “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
(jxii) all regulatory approvals such other documents, instruments, certificates and consents opinions as the Agent or any Lender may reasonably request on or prior to the transactions contemplated by this Agreement shall have been obtained and be Closing Date 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and complied in all material respects connection 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;
(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 consummation 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 approval 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 madehereby.
(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 Company; 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: Credit Agreement (V F Corp)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligations of the Company Share 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 Borrower contained herein as of the date hereof and 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 this Agreement unlessthe provisions hereof, and (iii) the performance by the Authority and the Borrower of their respective obligations to be performed hereunder or otherwise at or before prior to the Closing, each of Closing and to the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing additional conditions:
(a) At the representations Closing, the Resolution shall have been duly adopted by the Authority and warranties of Purchaser in this Agreement shall be true in full force and correct effect and constitute the legal, valid and binding action of the Authority, and the Borrower Documents, when executed and delivered by the parties thereto, will constitute legal, valid and binding obligations of the parties thereto, enforceable in all material respects at 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 ClosingPlacement Agent;
(b) Purchaser shall have performed and complied in all material respects with At 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 documentsClosing, 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 material adverse change in the business, properties or change that has had financial condition of the Bank, as described in the Placement Memorandum or would be reasonably likely of the Borrower, which in the judgment of the Placement Agent, makes it inadvisable to proceed with the offer and sale of the Bonds;
(c) The Letter of Credit shall have a Material Adverse Effect on Purchaserbeen delivered by the Bank;
(d) At the Closing, the Placement Memorandum shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Placement Agent;
(e) Vendor Neither the Authority nor the Borrower shall have entered into a consulting agreement between Vendor and Purchaserdefaulted in the performance of any of their covenants hereunder, in a form satisfactory to Vendor and under the CompanyIndenture or under the Borrower Documents;
(f) the conditions in Section 4.2 of the Option Agreement The Placement Agent 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, eitherreceived:
(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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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: Loan Agreement (Lannett Co Inc)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the 11.1 The purchase and sale of the Company Share pursuant Purchased Assets and the Purchased Shares are subject to this Agreement unless, at or before the Closing, each of the following terms and conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:
the Purchaser to be fulfilled and/or performed at or prior to Closing except in the case of paragraph (h) below which must be fulfilled by November 7, 1997 or such later date as CCL shall approve acting reasonably: (a) the Purchaser shall be satisfied that the representations and warranties of Purchaser CCL contained in this Agreement shall be true and correct in all material respects at on the Closing;
date hereof, except those representations and warranties that are qualified by the word "material", which representations shall be true and correct in all respects as of the date hereof; (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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company CCL contained in this Agreement shall be true and correct on and as of the 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 at the Closing;
(b) Each of the Vendor and the Company Purchaser shall have performed and received on the Closing Date a certificate dated the Closing Date, in form reasonably satisfactory to counsel for the Purchaser, executed by CCL to the foregoing effect; (c) CCL shall have fulfilled and/or complied with, in all material respects with the terms respects, its obligations, covenants and conditions in this Agreement on their respective part agreements herein contained to be performed or complied with at or before the Closing caused to be performed by it and CCL shall have executed and delivered or caused to have been executed and delivered to Vendor at a certificate dated the Closing all Date to the documents, payments and certificates contemplated in section 5.2 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 Option Agreementforegoing effect; and
(d) all regulatory the consents and approvals and consents referred to the transactions contemplated by this Agreement in Schedule 6.7 - Consents shall have been obtained in form and on terms satisfactory to the 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 in full force pending or to the knowledge of CCL or the Purchaser, threatened by any person to enjoin, restrict or prohibit and effectno order shall have been obtained by any person enjoining, including restricting or prohibiting the approval of the TSX Venture Exchange or any other stock exchange that the securities sale of any of Purchaser are listed on the Purchased Assets 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) Purchased Shares to the Purchaser shall have obtained all necessary corporate authorization or the right of Kolmar and regulatory approval, including the approval of Subsidiaries to continue to conduct 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, 2009Business; and
and (h) Purchaser, the Company and Altius ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreementan employment.
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 Company; 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: Share and Asset Purchase Agreement (Aerosol Services Co Inc)
Conditions of Closing. 4.1 Vendor shall not be obligated Notwithstanding anything in this Agreement to the contrary, the obligation of the Purchaser to complete the sale purchase of the Company Share Shares pursuant to this Agreement unless, Section 1 herein will be subject to the satisfaction at or before prior to the Closing, Closing of each of the following conditions listed below (the “Purchaser Closing Conditions”):
8.01 The Purchaser will have received the following legal opinions that are in this section 4.1 has been satisfied, it being understood that a form satisfactory to the said conditions are included for the exclusive benefit of VendorPurchaser:
(a) That the 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 payable to W▇▇▇▇ ▇, G. ▇▇▇▇▇▇ 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 M▇▇▇▇ ▇. ▇▇▇▇▇▇ Limited for the preparation of a technical report on the Propertyv. Themescapes, and Purchaser shall have made arrangements for the repayment to VendorInc., within 120 days of the Closing Date, of the balance of the ExpensesCivil Action No. 1581-N;
(ib) PurchaserThat 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 and Altius shall have entered into to shareholders of Themescapes pursuant to the Assignment Agreement in Reorganization was exempt from registration under Section 5 of the form set out in Schedule Securities Act of 1933, as amended (the “B” to this AgreementSecurities Act”);
(d) That neither the Shareholder Meeting nor the Reorganization triggered dissenters' rights of appraisal under Delaware law; and
(je) all regulatory approvals That the Shares being acquired by the Purchaser hereunder were lawfully issued, fully paid and consents to the transactions contemplated by this Agreement are non-assessable.
8.02 The Purchaser shall have been obtained and be in full force and effect, including: provided with the approval of the TSX Venture Exchange following documents 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 its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, eitheragreements:
(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 transactions 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 A certificate from ▇▇▇▇ ▇. ▇▇▇▇▇▇ certifying that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company Selling Parties contained in this Agreement shall 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 in all material respects at the Closing;Closing with respect to such date or period.
(b) Each All corporate minutes, books, documents and instruments of every type or nature whatsoever of the Vendor and Company from inception to the Company shall have performed and complied date of Closing, including all documents or instruments upon which an legal opinion rendered in all material respects accordance 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 AgreementSection 8.02 hereof is based;
(c) during Signed customary management representation letters and attorney letters addressed to the Interim Period, there shall have been no Order made Company’s accountants and auditors that would be required by either to prepare or any Legal Proceedings commenced or threatened review the Company’s financial statements for the purpose of enjoiningnine months ended September 30, 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 approval 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 made2006.
(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 Company; 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
Conditions of Closing. 4.1 Vendor 6.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 shall have to be performed and complied in all material respects with the terms and conditions observed in this Agreement on its part prior to be performed or complied with at or before the Closing and shall have executed been performed 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 Agreementobserved;
(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 reconstituted its board of directors to consist of nominees of the Company, and which are expected to include ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Arjan ▇▇▇▇▇▇ ▇▇▇▇▇;
(e) the Purchaser shall have changed its name to “Centr Brands Corp.”, or 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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 6.2 If any condition in Section 4.1 section 6.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each the covenants and conditions of the Vendor Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and complied observed 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 Agreementrespects;
(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 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 approval 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;
(e) the assets of the Company being free of all Adverse Interests, unless otherwise agreed by the Purchaser;
(f) the conditions in Section 4.2 Board of Directors of the Option Agreement Company shall have been satisfied;approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of Incorporation of the Company; and
(g) Purchaser during the Interim Period, there shall have obtained all necessary corporate authorization and regulatory approvalbeen no Order made or any Legal Proceedings commenced or threatened for the purpose, including or which could have the approval effect, of preventing or restraining the completion 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 transactions contemplated 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 6.4 If any condition in section 4.3 shall 6.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated to complete The Subscriber acknowledges and agrees that the sale Corporation is relying on the truth of the Company Share pursuant to this Agreement unless, at or before the Closing, each representations and warranties of the conditions listed below Subscriber contained in this section 4.1 has been satisfiedSubscription Agreement as of the date of this Subscription Agreement, it being understood that and as of the said Closing Time as if made at and as of the Closing Time, and the fulfillment of the following additional conditions are included for prior to the exclusive benefit of VendorClosing Time:
(a) at or prior to the time and date specified by the Corporation to the Subscriber:
(i) the Subscriber having made payment of the Subscription Amount in a manner as described below or in such other manner as may be provided for by the Corporation. Payment can be made by way of wire transfer in U.S. funds using the following wire transfer instructions: Beneficiary Name and Address: Account No.: Routing No.: Bank Name: Bank Address: Bank SWIFT code:
(ii) the Subscriber having properly completed, signed and delivered this Subscription Agreement (including all applicable Schedules attached hereto) to: MedMen Enterprises, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ With a Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP 2100 Scotia Plaza ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(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 Purchaser in this Agreement shall be the Subscriber set forth herein being true and correct in all material respects at as of the ClosingClosing Time;
(bd) Purchaser shall have performed all covenants and complied in all material respects with the terms and conditions in this Agreement on its part agreements contained herein to be performed or complied with at by the Subscriber on or before prior to the Closing and shall have executed and delivered Time having been performed or caused to have been executed and delivered to Vendor at complied with in all respects by 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 PurchaserSubscriber;
(e) Vendor shall have entered into a consulting agreement between Vendor the Corporation having obtained all necessary approvals, waivers, acknowledgements and Purchaser, consents in a form satisfactory to Vendor and respect of the CompanyOffering;
(f) the conditions Corporation having accepted the Subscriber’s subscription, in Section 4.2 of the Option Agreement shall have been satisfied;whole or in part; and
(g) Purchaser shall have obtained all necessary corporate authorization the issue and regulatory approval, including the approval sale of the TSX Venture Exchange, for Shares being exempt from the issuance of 10,000,000 Purchaser Shares at requirement to file 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 prospectus or registration statement under applicable Securities Laws relating to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days sale of the Closing DateShares, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 Option Agreement; and
(d) all regulatory Corporation having received such orders, consents or approvals and consents as may be required to permit such sale without the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the approval of the TSX Venture Exchange requirement to file a prospectus or any other stock exchange that the securities of any of Purchaser are listed on or to which an application for listing has been maderegistration statement.
(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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated Unless waived in writing by Purchaser, the obligation of Purchaser to complete purchase the sale of Shares is subject to the Company Share pursuant to this Agreement unlesssatisfaction in all material respects, at on or before the Closing, each of the following conditions listed below and of any other conditions otherwise enumerated in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of VendorAgreement:
(a) the Seller’s representations and warranties of Purchaser in this Agreement shall be true and correct Section 4 above are accurate in all material respects at the Closingrespects;
(b) Purchaser Seller shall have performed in all material respects all obligations and complied in all material respects with the terms and conditions in this Agreement on its part all covenants required to be performed or to be 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 by them under this Agreement;
(c) during the Interim Period, there Purchaser shall have been no Order registered with the SEC and made or any Legal Proceedings commenced or threatened for all appropriate filings necessary to own a majority shareholding interest in 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 AgreementCompany;
(d) during Neither the Interim Period there Company nor the SEC shall not have been delivered any event notice or change that has had expressed any other objection to the purchase and sale of the Shares or would be reasonably likely to have a Material Adverse Effect on Purchaserany other matter contemplated by this Agreement;
(e) Vendor Purchaser shall have entered into a consulting agreement between Vendor and Purchaser, in a form satisfactory transferred the Purchase Price to Vendor and the CompanySeller;
(f) Seller shall have notified the conditions in Section 4.2 Company and its transfer agents of the Option Agreement shall have been satisfiedsale and purchase of the Shares;
(g) Purchaser shall and Seller will have obtained all necessary corporate authorization cooperated 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, collaborated in an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, press release and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to public statement regarding this Agreement; and
(jh) all regulatory approvals and consents 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 transactions contemplated by consequence of which is that, or with notice or lapse of time or both the consequence of which would be that, any of the 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 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 through 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 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 transactions contemplated by this Agreement unlessevent, at action, omission, occurrence or before the Closingsituation which Seller has stated, each of the conditions listed below in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties contained in Section 4, it has no knowledge of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each as of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 date 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated The obligations of the Underwriter and any Substituted Purchasers to complete the sale purchase of Units as contemplated hereby shall be conditional upon the Underwriter being satisfied, acting reasonably, with the results of its due diligence investigations relating to the Company Share pursuant to this Agreement unless, and upon the fulfilment at or before the Closing, each Closing Time of the following conditions, which conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for Company covenants to use its best efforts to fulfil or cause to be fulfilled prior to the exclusive benefit of VendorClosing Time:
(a) the representations execution and warranties delivery of Purchaser in this Agreement and the Subscription Agreements and the creation and issuance of the Shares and Warrants underlying the Units shall be true and correct in have been duly authorized by all material respects at the Closingnecessary corporate action;
(b) Purchaser all necessary consents and approvals with respect to the sale and issuance of the Shares and Warrants underlying the Units shall have performed been obtained;
(c) the Underwriter shall have received certificates, in form and complied substance satisfactory to the 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 Closing Date, signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company, or such other officers of the Company as the Underwriter may accept, certifying on behalf of the Company to the effect that, except as has been generally disclosed at the date thereof:
(i) there has not been any material adverse change since June 30, 2000 in relation to the Company and 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 material respects with 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 this Agreement on its part 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 Time, all covenants, agreements and obligations of the Company hereunder and under the Subscription Agreements required to be performed or complied with at on 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 Time shall have been no Order made so performed 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 complied with and all conditions required to be complied with 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and been complied in all material respects with the terms and conditions in this Agreement on their respective part with. The certificates described above required to be performed or complied with delivered at or before the Closing and shall have executed and delivered or caused to have been executed Time will also be addressed and delivered to Vendor such persons to whom the Underwriter may resell the Units after the Closing Time, provided they are identified at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 madeTime.
(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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated (▇) ▇▇▇ ▇▇▇▇gation of Seller to complete consummate the sale of the Company Share pursuant Premises and the Personalty at the Closing is subject to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing conditions:
(ai) 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 and warranties of Purchaser Seller contained in this Agreement shall be true and correct 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;
(b) Purchaser , and Seller shall have performed and complied in all material respects with the terms and conditions in this Agreement all agreements on its part required to be performed or complied with at or before perform under any of 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 provisions of this Agreement;
(cii) during the Interim Period, there Seller shall have been no Order made or any Legal Proceedings commenced or threatened 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 purposePremises, evidence of insurance required to be maintained by tenants under the Lease, and any permits or which could have licenses affecting the effect, of enjoining, preventing or restraining Premises) to 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 Title Company;
(fiii) the conditions in Section 4.2 of the Option Agreement shall have been satisfied;
(g) Purchaser Buyer shall have obtained all necessary corporate authorization and regulatory approval, including a commitment for an ALTA owners title insurance policy insuring fee simple title to the approval Premises in the amount of the TSX Venture Exchange, for Purchase Price free and clear of all liens and encumbrances except the issuance of 10,000,000 Purchaser Shares at a price of $0.15 per share, through Permitted Encumbrances (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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement"Title Policy"); and
(jiv) all regulatory approvals and consents 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 transactions contemplated by 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 been obtained and be in full force and effect, including: any claim against the approval of other except that if the TSX Venture Exchange or any other stock exchange that the securities of Purchaser are listed on or transaction fails 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 close as a result of the failure of Vendor Seller's inability to comply with its obligations under this Agreement, then Vendor in its sole discretion may, without limiting any rights deliver marketable title 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Seller's breach of the failure of Purchaser to comply with its obligations under this Agreement, then Purchaser 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 its sole discretion mayinvestigating the Premises and negotiating this Agreement and the Lease, including, without limiting limitation, any rights or remedies available fees paid to Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor and the Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other conditionBuyer's proposed lender.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Alpha Technologies Group Inc)
Conditions of Closing. 4.1 Vendor shall not be obligated The obligations of the Purchaser to complete the sale purchase of the Company Share pursuant Shares is subject to this Agreement unless, at the satisfaction on or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Purchaser, of each of the following conditions:
(a) the representations and warranties of Purchaser 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) Purchaser the Company shall have have, in all material respects, performed and complied in with all material respects with the terms covenants and conditions agreements in this Agreement on its part to be performed or complied with with, or caused to be performed or complied with, by the Company at or before prior to the Closing Closing;
(c) the Company shall have 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;
(d) the Stock Exchange shall have accepted notice of the offering and sale of the Shares on the terms contemplated herein and shall have executed conditionally approved the listing of the Shares, subject to the Company fulfilling the requirements as to the filing of certain documents and delivered 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 caused 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 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 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 form and substance satisfactory to the Purchaser and its counsel acting reasonably, shall 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius Purchaser shall have entered into completed a due diligence review satisfactory to the Assignment Agreement Purchaser in its sole discretion, acting reasonably, of the form set out in Schedule “B” to this Agreementfinancial condition, business, affairs, properties and assets of the Company; and
(j) all regulatory approvals and consents to the transactions contemplated by this Agreement Purchaser shall have been obtained and be in full force and effectreceived a certificate, including: the approval dated as of the TSX Venture Exchange Closing Date, signed by the President and the Chief Financial Officer of the Company 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 officers of the failure Company acceptable to the Purchaser, certifying for and on behalf of Vendor the Company, to comply with its obligations under this Agreementthe best of their knowledge, then Vendor in its sole discretion mayinformation and belief, without limiting any rights or remedies available to Vendor at law or in equity, eitherthat:
(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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(ai) the representations and warranties of Vendor and the Company in Section 3 of this Agreement shall be are true and correct in all material respects as at the Closing;
(bii) Each of the Vendor and the Company shall have has, in all material respects, performed and complied in with all material respects with the terms covenants and conditions agreements in this Agreement on their respective part to be performed or complied with at or before the Closing and shall have executed and delivered with, or caused to have been executed and delivered be performed or complied with, by the Company at or prior to Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 and elsewhere in this AgreementClosing;
(ciii) during the Interim PeriodCompany 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 shall have has been no Order made adverse material change (actual, anticipated, contemplated or any Legal Proceedings commenced threatened, whether financial or threatened for otherwise) in the purpose of enjoiningbusiness, preventing affairs, operations, assets, liabilities (contingent or restraining the completion otherwise) or capital of the transactions contemplated by this Agreement or the Option AgreementCompany and its subsidiaries; and
(dv) all regulatory approvals and consents to no transaction has been entered into by the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the approval of the TSX Venture Exchange Company or any other stock exchange that the securities of any of Purchaser are listed on or to its subsidiaries 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 is or would be reasonably likely material 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 Agreementits subsidiaries on a consolidated basis.
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 Company; 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: Share Purchase and Sale Agreement (Vista Gold Corp)
Conditions of Closing. 4.1 Vendor 6.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 performed and complied in all material respects with changed its name to “▇▇▇▇ Ventures Corp.”, or such other name as is acceptable to 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 AgreementCompany;
(ce) 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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 6.2 If any condition in Section 4.1 section 6.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each the covenants and conditions of the Vendor Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and complied observed in all material respects with respects;
(c) the terms and conditions in receipt of any Consents contemplated by this Agreement on their respective part 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 be performed or complied with at or before the Closing Purchaser, and shall have executed all such approvals being in full force and delivered or caused to have been executed and delivered to Vendor at effect, including the Closing all approval of the documents, payments and certificates contemplated in section 5.2 and elsewhere in this AgreementExchange;
(cd) 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 approval 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;
(e) the assets of the Company being free of all Adverse Interests, unless otherwise agreed by the Purchaser;
(f) the conditions Company having delivered to the 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 Section 4.2 of the Option Agreement shall have been satisfiedany disclosure document or other filing required by applicable regulatory authorities;
(g) Purchaser shall have obtained all necessary corporate authorization obligations and regulatory approvalother contractual commitments of the Company being in good standing in respect of the Business, including without limitation the non-termination of any material contracts and permits, including the approval Colombian Licence, and intellectual property required in connection with the Business;
(h) the Vendors having entered into such escrow arrangements as may be required by the Exchange;
(i) the Purchaser having received evidence of satisfaction of all applicable listing requirements of the TSX Venture Exchange, for Exchange in connection with the issuance business of 10,000,000 Purchaser Shares at a price the Company;
(j) the Board of $0.15 per share, through the Subscription Receipts offering announced by Directors of the Company on December 2shall have approved the transfer of the Company Shares contemplated in this Agreement, 2009in accordance with the Articles of Incorporation of the Company; and
(hk) Purchaserduring the Interim Period, the Company and Altius there shall have entered into been no Order made or any Legal Proceedings commenced or threatened for the Assignment Agreement in purpose, or which could have the form set out in Schedule “B” to effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
4.4 6.4 If any condition in section 4.3 shall 6.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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.condition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 4.1 Vendor The obligation of Seller, on the one hand, and Purchaser, on the other hand, to proceed with the Closing shall not be obligated subject to complete the sale following:
a) each representation and warranty of the Company Share pursuant to this Agreement unlessother Party described in clause 3.2 or 3.3, at or before as the Closingcase may be, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:
(a) the representations and warranties of Purchaser in this Agreement shall be true and correct in all material respects at as of the ClosingClosing Date;
(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 no action, proceeding, investigation, regulation 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 legislation shall have been no Order made instituted, threatened or proposed before any Legal Proceedings commenced court, governmental agency or threatened for the purposelegislative body to enjoin, restrain, prohibit or which could have the effect, obtain substantial damages in respect of enjoining, preventing this Agreement or restraining the completion of the transactions contemplated by this Agreement or the Option Agreementhereby;
(c) each Party shall have delivered to the other the documents contemplated in Clauses 3.2 and 3.3 above;
d) during Seller on 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 one hand and Purchaser 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 other hand shall have obtained all necessary corporate authorization appropriate authorisations 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.
approvals (h) Purchaser shall have made a cash payment to Vendor, by certified cheque, in an amount equal if and to the feesextent required) from any governmental, expenses and taxes paid administrative or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of judicial authority (a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i"Governmental Authority") Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory approvals and consents with respect to the transactions contemplated by execution of 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 Option Agreement; and
(d) all regulatory approvals hereby and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the such approval 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 place any event materially undue or change that has had or would be reasonably likely to have a Material Adverse Effect commercially burdensome provisions on the Company;
(fe) the any and all transactions and conditions in Section 4.2 of the Option contemplated by this Agreement to be completed and satisfied on or prior to Closing shall have been so completed and satisfied;; and
(gf) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including not be obliged to complete the approval purchase of the TSX Venture ExchangeShares agreed to be acquired hereunder unless (x) the purchase of all such Shares is completed simultaneously and (y) simultaneously therewith, for the issuance of 10,000,000 Purchaser Shares at a price of $0.15 per share, through the Subscription Receipts offering announced transactions contemplated by the Brittany Insurance Company on December 2, 2009; and
Limited (h"BICL") Purchaser, Purchase Agreement are consummated. Each of the Company 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 Altius agree that no Party shall have entered into any liability or obligation to the Assignment Agreement other in the form set out in Schedule “B” to this Agreement.
4.4 If any condition in section 4.3 event that the transactions contemplated hereby 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 be completed because of the failure of Purchaser any of the foregoing conditions to comply with its obligations under have been satisfied on or prior to the Closing, except where such failure results from a breach by any Party of any of the provisions of 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 Company; 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: Share Sale and Purchase Agreement (Enstar Group Inc)
Conditions of Closing. 4.1 Vendor 5.1 The Vendors shall not be obligated to complete the sale of the Company Share Purchased Shares pursuant to this Agreement and the other transactions contemplated herein, unless, at or before the Acquisition Closing, each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the representations and warranties of the Purchaser in section 4.3 of this Agreement shall be true and correct in all material respects at the ClosingAcquisition 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 complied observed 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 Agreementrespects;
(c) during the Interim Periodreceipt 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 Order 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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 5.2 If any condition in Section 4.1 section 5.1 hereof 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 the Vendors to comply with its obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 5.3 The Purchaser shall not be obligated to complete the purchase of the Purchased Shares pursuant to this Agreement and the other transactions contemplated by this Agreement herein, unless, at or before the Acquisition Closing, each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor and the Company Vendors as set out in section 4.1 of this Agreement shall be true and correct in all material respects at the Closing;Acquisition Closing Date;
(b) Each the representations and warranties of the Vendor Company as set out in section 4.2 of this Agreement shall be true and the Company shall have performed and complied correct 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 Acquisition Closing all the documents, payments and certificates contemplated in section 5.2 and elsewhere in this AgreementDate;
(c) during the Interim Period, there covenants and conditions of the Vendor to be performed and observed in this Agreement prior to or at Acquisition Closing shall have been no Order made performed and observed in all material respects;
(d) the Vendors and the Company having entered into and provided all information, forms, certificates, undertakings, agreements and other documents and instruments that may be required by the Exchange;
(e) the receipt of any approvals or any Legal Proceedings commenced consents contemplated by this Agreement or threatened otherwise necessary for the purpose of enjoining, preventing or restraining this Agreement and the completion of the transactions contemplated by this Agreement or the Option Agreement; and
(d) all regulatory approvals herein, in form and consents content and upon such conditions, if any, acceptable to the transactions contemplated by this Agreement shall have been obtained Purchaser, and be all such approvals being in full force and effect, including ;
(f) the approval completion of the TSX Venture Exchange transactions contemplated herein not constituting a “fundamental change” or any other stock exchange that a “change of business” for the securities Purchaser, as defined in the policies of any of Purchaser are listed on or to which an application for listing has been made.the Exchange;
(eg) during the Interim Period there shall not have been any no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the Company;
(fh) the conditions in Section 4.2 Company shall have no Company Employees and there shall be no liabilities owing to former Company Employees;
(i) the Board of Directors of the Option Agreement Company shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including approved the approval transfer of the TSX Venture ExchangePurchased Shares contemplated in this Agreement, for in accordance with the issuance constating documents 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, 2009Company; and
(hj) Purchaser, the Company and Altius there shall have entered into been no order made or any Legal Proceedings commenced or threatened for the Assignment Agreement in purpose, or which could have the form set out in Schedule “B” to effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
4.4 5.4 If any condition in section 4.3 shall 5.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor and the Company; oror
(b) waive compliance with any such condition without prejudice to its right of termination in the event of the non-fulfillment of any other conditioncondition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated to complete (1) The completion of the purchase and sale of the Company Share pursuant 1% Holder Shares in connection with the exercise of the On-Default Option is subject to this Agreement unlessthe following conditions to be fulfilled or performed, at on or before the ClosingOn-Default Option Closing Date, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said which conditions are included for the exclusive benefit of Vendorthe On-Default Option Holders and may be waived, in whole or in part, by an On-Default Option Holder in its sole discretion:
(a) the representations 1% Holder must represent and warranties 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 Purchaser all Liens other than those restrictions contained in the Articles and this Agreement shall be true Agreement, and correct (ii) upon completion, the On-Default Option Holders will have good and valid title to the 1% Holder Shares sold by the 1% Holder, free and clear of all Liens other than (A) those contained in all material respects at the ClosingArticles and this Agreement, (B) Liens granted by the On-Default Option Holders exercising the On-Default Option, and (C) the 1% Option;
(b) Purchaser shall have performed all filings, notices and complied in all material respects with the terms and conditions in this Agreement on its part Authorizations required to be performed or complied with at or before obtained by the Closing 1% Holder to complete the purchase and shall have executed and delivered or caused to sale of the 1% Holder Shares must have been executed and delivered to Vendor at the Closing all the documentsmade, payments and certificates contemplated in section 5.3 and elsewhere in this Agreementgiven or obtained;
(c) during the Interim Period, there shall 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 no Order made made, issued or delivered by any Legal Proceedings commenced Governmental Entity, seeking to enjoin, restrict or threatened for the purpose, prohibit or which could have the effect, of enjoining, preventing restricting or restraining the completion prohibiting, on a temporary or permanent basis any of the transactions contemplated by this Agreement Article 11 or the Option Agreement;
(d) during the Interim Period there shall not have been imposing any event temporary or change that has had permanent terms or would be reasonably likely to have a Material Adverse Effect conditions 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 Article 11.
(2) The completion 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 purchase and sale of the failure 1% Holder Shares in connection with the exercise of Vendor the On-Default Option is subject to comply with its obligations under this Agreementthe purchase and sale of the 1% Holder Shares not resulting in the violation of any Law, then Vendor in its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, eitherwhich condition:
(a) terminate this Agreement by notice is to Purchaser; orbe fulfilled or performed on or before the On-Default Option Closing Date;
(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 transactions 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 said conditions are included is for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 and elsewhere in this Agreement;1% Holder; and
(c) during may be waived, in whole or in part, by 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 1% Holder in full force and effect, including the approval 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 madeits sole discretion.
(e3) 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 approvalIf, 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 a condition expressed in this Section, the failure purchase and sale of Purchaser to comply the 1% Holder Shares in connection with its obligations under this Agreementthe exercise of the On-Default Option cannot be completed on the On-Default Option Closing Date, then Purchaser in its sole discretion may, without limiting any rights or remedies available to Purchaser at law or in equity, either:
the purchase and sale of the 1% Holder Shares shall be completed on the second (a2nd) terminate this Agreement by notice to Vendor and Business Day following the Company; or
(b) waive compliance with any such date that the condition without prejudice to its right of termination in the event of non-fulfillment of any other conditionis subsequently satisfied.
Appears in 1 contract
Sources: Shareholder Agreement
Conditions of Closing. 4.1 Vendor The Recipient shall not be obligated to complete the sale purchase of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Recipient:
(a) the representations and warranties of Purchaser the Vendors in this Agreement shall be true and correct in all material respects at the Closing;
(b) Purchaser 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 complied observed 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 Agreementrespects;
(c) during the Interim Period, there shall have been no Order made receipt of any consents contemplated by this Agreement or any Legal Proceedings commenced or threatened otherwise necessary for the purpose, or which could have the effect, of enjoining, preventing or restraining this Agreement and the completion of the transactions contemplated by this Agreement or herein, in form and content and upon such conditions, if any, acceptable to the Option AgreementRecipient, and all such approvals being in full force and effect;
(d) during the Interim Period there Company and the Recipient shall not have been any event or change that has had or would be reasonably likely to have a Material Adverse Effect on Purchaserdetermined the Exchange Ratio;
(e) Vendor all holders of the Company Shares, the Company Options and the Company Warrants shall have entered into a consulting agreement between Vendor duly executed and Purchaser, in a form satisfactory delivered Joinder Agreements to Vendor and the Company;Recipient; and
(f) the conditions in Section 4.2 Board of Directors of the Option Agreement Company shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including approved the approval transfer 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) PurchaserShares, the Company Options and Altius shall have entered into the Assignment Agreement Company Warrants contemplated in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory approvals and consents to , in accordance with the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including: the approval Articles 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 madeCompany.
4.2 If any condition in Section section 4.1 hereof 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 the Recipient to comply with its obligations under this Agreement, then Vendor in its sole discretion the Recipient may, without limiting any rights or remedies available to Vendor the Recipient 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 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 conditioncondition for its benefit.
Appears in 1 contract
Conditions of Closing. 4.1 Vendor shall not be obligated to complete for the sale Benefit of the Company Share pursuant Buyer Closing is subject to this Agreement unlessthe following conditions, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions which are included for the exclusive benefit of Vendor:
(a) the representations Buyer 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 which are to be performed or complied with at or before the Closing and shall have executed and delivered or caused prior 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, eitherClosing:
(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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(ai) the representations Fundamental Warranties given in favour of the Buyer pursuant to this Agreement; and warranties (ii) the Warranties under paragraph 30 of Vendor and Part 2 of Schedule 2 (if so given in favour of the Company in this Agreement Buyer on the Closing Date), shall be true and correct in all material respects at on the ClosingClosing 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) Each the Seller shall have performed, fulfilled and complied, and shall have caused the Group Entities to perform, fulfil and comply, with all of the Vendor and the Company shall have performed and complied in all material respects with the terms obligations, covenants and conditions in of this Agreement on their respective part to be performed performed, fulfilled or complied with by the Seller and the Group Entities, as applicable, at or before prior to the Closing Date and shall 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 caused regulatory action or proceeding being pending or threatened by any Governmental Authority to enjoin, restrict or prohibit the purchase and sale of the Purchased Shares, the transfer of the Residual Intercompany Loans or transfer of the Loan Notes contemplated hereby or in the reasonable opinion of the Buyer (supported by Queens Counsel in the form of an opinion from the Queens Counsel), 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 been executed 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 delivered agreed the terms of the SAF Facility Deeds of Novation with SAF and the Seller (in each case on terms which are acceptable to Vendor at the Closing Buyer in its absolute discretion which shall include without limitation:
A. the satisfaction of all conditions precedent;
B. the documentsrelease of the Seller of its liabilities, payments and certificates 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 section 5.2 and elsewhere 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;
(ciii) during received confirmation from the Interim Period, there shall have been no Order made or Seller’s Guarantors Banks that the Group has not given any Legal Proceedings commenced or threatened guarantees to them for the purpose of enjoining, preventing or restraining benefit the completion Seller Group and/or that such any such guarantees shall be released by the relevant senior lenders on Closing; for the purposes of the transactions contemplated by this Agreement or the Option Agreement; and
(d) all regulatory approvals transaction of sale and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the approval purchase of the TSX Venture Exchange or any other stock exchange that Purchased Shares, 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 Residual Intercompany Loans and Loan Notes contemplated 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, 2009this Ag reement; and
(h) Purchaser, the Company and Altius Buyer shall have entered into received written consent in a form reasonably satisfactory to SAF, procured by the Assignment 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 in to the form set out in Schedule “B” 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.
4.4 If Agreement to the Buyer and any condition in section 4.3 shall not have been fulfilled at or before Lender pursuant to Clause 11.7 of the Closing or if any Basil SPA. Any such condition is may be waived in whole or becomes impossible in part by the Buyer without prejudice to satisfyany claims it may have for breach of covenant or warranty hereunder, other than as a result the condition at Clause 6.2(h) which may only be waived by the Buyer with the prior written consent of the failure of Purchaser to comply with its obligations under this Agreement, then Purchaser SAF (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 Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other conditionSAF’s absolute discretion).
Appears in 1 contract
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligations of the Company Share pursuant Purchasers to consummate the transactions contemplated by this Agreement unless, shall be conditioned upon the fulfilment or waiver by each Purchaser at or before the Closing, each Closing Time of the following conditions, which conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for Company covenants to use its best efforts to fulfil or cause to be fulfilled prior to the exclusive benefit of VendorClosing Time:
(a) the execution and delivery of this Agreement, the due authorization of the issuance of the Common Shares shall have been duly authorized by all necessary corporate action;
(b) the conditional approval of the Stock Exchanges to list the Common Shares shall have been obtained;
(c) the Purchasers shall have received certificates addressed to the Purchasers, dated as of the date of Closing, signed by the Chief Executive Officer of the Company, or such other officer or officers of the Company as the Purchasers 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;
(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 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 Purchaser the Company contained in this Agreement shall be 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 ClosingClosing Time;
(biv) Purchaser shall have performed and the Company has complied in all material respects with all the terms and conditions in of 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this AgreementTime; and
(jv) all regulatory approvals as to such other matters of a factual nature as are appropriate and consents to the 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 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 usual in the event of non-fulfillment of any other condition.
4.3 Purchaser shall not be obligated to complete circumstances and as the transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 Purchasers or the Option AgreementPurchasers’ counsel may reasonably request; and
(d) all regulatory approvals and consents to the transactions contemplated by this Agreement Company shall have been obtained and be in full force and effect, including the approval delivered to each Purchaser’s custodian 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 identified in Section 4.2 of 10 below the Option Agreement shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including certificates representing 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 AgreementCommon Shares.
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 Company; 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: Securities Purchase Agreement (Kennedy-Wilson Holdings, Inc.)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale 11.1 The obligations of the Company Share pursuant to this Agreement unless, at or before Agent on each Closing will be conditional upon the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing:
(a) the representations Issuer will take all necessary corporate action in order to validly create, issue and warranties sell the Shares;
(b) the Issuer will make all necessary filings, if any, and obtain all necessary approvals, if any, in the United States in order to issue and sell the Shares to the Purchasers and to ensure that such issuance and sale will not be subject to or be exempt from the prospectus requirements of Purchaser the Applicable Legislation;
(c) the Issuer's outstanding common shares will be listed and posted for trading on the Exchange, subject in this Agreement shall each case only to conditions which by their nature may only be true and correct in all material respects at fulfilled after the Closing;
(bd) Purchaser shall have performed and complied the Agent will be satisfied, in all material respects its sole discretion, with the terms and conditions in this Agreement on results 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 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 investigation of the transactions contemplated by this Agreement or business and affairs of 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 PurchaserIssuer;
(e) Vendor shall have entered into a consulting agreement between Vendor on each Closing, the Issuer will deliver to the Agent and Purchaserits solicitors favourable opinions of the Issuer's solicitors dated as of the date of the Closing, in a form satisfactory as to Vendor all legal matters reasonably requested by the Agent relating to the incorporation of the Issuer and its Subsidiaries, their respective businesses and the Company;creation, issuance and sale of the Securities, satisfactory in form and substance to the Agent; lxs\lxs01411\2\March 22, 2001
(f) on each Closing, the conditions in Section 4.2 Issuer will deliver to the Agent and its solicitors such certificates of its officers, comfort letters or opinions of its auditors, and other documents relating to the Private Placement or the affairs of the Option Agreement shall have been satisfiedIssuer as the Agent or its solicitors may reasonably request, satisfactory in form and substance to the Agent;
(g) Purchaser shall have obtained all necessary corporate authorization each representation and regulatory approval, including the approval warranty of the TSX Venture ExchangeIssuer herein will continue to be true, for and the issuance Issuer will perform or comply with all of 10,000,000 Purchaser Shares at a price of $0.15 per shareits covenants, through the Subscription Receipts offering announced by the Company on December 2, 2009.agreements and obligations hereunder;
(h) Purchaser shall have made a cash payment to Vendor, by certified cheque, in an amount equal to the fees, expenses and taxes paid receipt of all required regulatory approval for or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days acceptance of the Closing Date, of the balance of the ExpensesPrivate Placement;
(i) Purchaserthe Issuer will have appointed a Chief Financial Officer and the Agent will have been satisfied, in its sole discretion, with the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreementselection of such Chief Financial Officer; and
(j) all regulatory approvals and consents the removal or partial revocation of any cease trading order or trading suspension made by any competent authority to the 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 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 extent necessary to complete the transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 madePrivate Placement.
(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 11.2 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 Subsection 11.1 are for the Closing or if any such condition is or becomes impossible to satisfy, other than as a result sole benefit of the failure of Purchaser to comply with its obligations under this Agreement, then Purchaser Agent and may be waived by the Agent in its sole discretion may, without limiting any rights or remedies available to Purchaser at law whole or in equity, either:
(a) terminate this Agreement by notice to Vendor and the Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other conditionpart.
Appears in 1 contract
Sources: Private Placement Agency Agreement (Gasco Energy Inc)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The Closing of the Company Share pursuant to transaction contemplated in this Agreement unless, at or before shall be subject to the Closing, each satisfaction of the following conditions listed below in this section 4.1 has been satisfiedprecedent on or prior to the Closing Date, it being understood that as the said conditions are included for the exclusive benefit of Vendorcase may be:
(a) As to each party, the representations and warranties of Purchaser in this Agreement the other party 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days time of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory approvals and consents to the transactions contemplated by this Agreement shall have been obtained same effect and be in full force extent as if such warranties 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects were made at the Closing;
(b) Each As to each party, the performance by the other party of the Vendor all terms and the Company shall have conditions of this Agreement required to be performed and complied in all material respects with at or prior to the terms and conditions in this Agreement on their respective part Closing shall have been fulfilled, including the delivery of all documents required hereunder to be performed or complied with delivered at or before prior to 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 AgreementClosing;
(c) during With respect to the Interim PeriodBankruptcy Case:
(i) on or prior to March 3, there 1999, Seller shall have filed the appropriate 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 Break-Up-Fee, as defined in Section 8.4. hereof; and
(iii) on or prior to March 19, 1999, the Bankruptcy Court shall have issued the Sale Order; and
(d) There shall have been no material adverse changes in the condition of the Purchased Assets from the date hereof through the Closing Date; and,
(e) Except with respect to an appeal of the Sale Order made (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 Legal Proceedings commenced court or threatened for 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 purpose of enjoining, preventing or restraining the completion consummation 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 approval 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 Company; 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: Asset Purchase Agreement (Michael Anthony Jewelers Inc)
Conditions of Closing. 4.1 Vendor 8.1 The obligations of the several Underwriters to purchase and pay for the 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 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 (i) may be waived in writing in whole or in part by the Lead Underwriters:
(a) the Preliminary Prospectus and the Prospectus shall not have been filed with the Canadian Securities Regulators, and the Corporation shall have made or obtained all other necessary filings, approvals, consents and acceptances of the Canadian Securities Regulators required to be obligated made or obtained by the Corporation prior to the Time of Closing in order to complete the sale of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfiedOffering as herein contemplated, it being understood that the said conditions are included for Underwriters shall do all that is required, acting reasonably, to assist the exclusive benefit Corporation to fulfill this condition;
(b) the directors of Vendorthe Corporation shall have authorized and approved this Agreement, the Indenture, the issuance of the Notes, 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 the Lead Underwriters, certifying that:
(ai) the representations and warranties of Purchaser in this Agreement shall be Prospectus is true and correct in all material respects at the Closingand contains no misrepresentation;
(bii) Purchaser shall have performed no Material Adverse Change has occurred 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 transaction out of the transactions contemplated by this Agreement or ordinary course of business and of a nature material to the Option Agreement;
(d) during the Interim Period there shall not have Corporation has 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 or announced since the Company;
(f) the conditions in Section 4.2 date of the Option Agreement shall have been satisfiedProspectus;
(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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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: Underwriting Agreement (Algonquin Power & Utilities Corp.)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligation of the Company Share Agent to perform its obligations pursuant to this Agreement unlessshall be conditional upon the Agent being satisfied with the results of its due diligence investigations relating to the Company and upon the fulfilment or waiver by the Agent at or before the Closing Time of the following conditions, which conditions the Company covenants to use its commercially reasonable efforts to fulfil or cause to be fulfilled prior to the Closing Time:
(a) the execution and delivery of this Agreement and the creation and issuance of the Offered Shares and Agent’s Warrants, the due authorization of the issuance of the Offered Shares and the allotment and reservation of the Agent’s Shares, shall have been duly authorized by all necessary corporate action;
(b) any necessary consents or approvals of the Securities Commissions and the SEC with respect to the issue and sale of the Offered Shares and Agent’s Warrants shall have been obtained, and the conditional approval of the Stock Exchange to list the Offered Shares and Agent’s Shares shall have been obtained;
(c) the Agent shall have received certificates addressed to the Agent and to the Purchasers, dated as of the Closing Date, signed by the Chief Executive Officer or the Chief Financial Officer of the Company, or such other officer or officers of the 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 required, addressed to the 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 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 ClosingClosing Time, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing conditions:
(a) the representations and warranties of Purchaser the Agent contained in this Agreement shall be 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;Closing Time; and
(b) Purchaser the Agent shall have performed and complied in with all material respects with the terms and conditions in of this Agreement on its their 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, 2009Time.
(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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor 6.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 shall have to be performed and complied in all material respects with the terms and conditions observed in this Agreement on its part prior to be performed or complied with at or before the Closing and shall have executed been performed 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 Agreementobserved;
(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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 6.2 If any condition in Section 4.1 section 6.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each the covenants and conditions of the Vendor Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and complied observed 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 Agreementrespects;
(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;
(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 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 approval 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;
(fe) the conditions in Section 4.2 Board of Directors of the Option Agreement Company shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including approved the approval transfer of the TSX Venture ExchangeCompany Shares contemplated in this Agreement, for in accordance with the issuance Articles 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, 2009Company; and
(hf) Purchaserduring the Interim Period, the Company and Altius there shall have entered into been no Order made or any Legal Proceedings commenced or threatened for the Assignment Agreement in purpose, or which could have the form set out in Schedule “B” to effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
4.4 6.4 If any condition in section 4.3 shall 6.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 4.1 Vendor 6.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 shall have to be performed and complied in all material respects with the terms and conditions observed in this Agreement on its part prior to be performed or complied with at or before the Closing and shall have executed been performed 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 Agreementobserved;
(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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 6.2 If any condition in Section 4.1 section 6.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each the covenants and conditions of the Vendor 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) all outstanding securities of the Company convertible into Company Shares shall have been cancelled, including the Vendors Warrants, and the Company shall not 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 any convertible securities outstanding 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 AgreementClosing;
(cd) 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;
(e) 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 approval 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 Board of Directors of the Option Agreement Company shall have been satisfiedapproved 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 have obtained all necessary corporate authorization and regulatory approval, including be satisfied in its sole discretion with the approval results of its due diligence review of the TSX Venture ExchangeCompany, for its businesse and affairs and 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, 2009Patent Assets; and
(hi) Purchaser, the Company and Altius shall have entered into a minimum of CDN$185,000 in cash on hand, after deducting the Assignment Agreement expenses of its legal counsel incurred in connection with the form set out in Schedule “B” to this Agreementcompletion of the transactions contemplated herein.
4.4 6.4 If any condition in section 4.3 shall 6.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Purchase Agreement
Conditions of Closing. 4.1 Vendor shall not The transactions contemplated hereby will be obligated completed at the Closing Time at the offices of the Company's counsel in Vancouver, British Columbia. The obligations of the Purchaser to complete the sale transactions contemplated hereby shall be subject to the following conditions precedent (which are for the sole benefit of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:Purchaser):
(a) The Company shall have delivered all of the representations documents described in paragraph 5 below, in each case in form and warranties of Purchaser in this Agreement shall be true and correct in all material respects at substance satisfactory to the ClosingPurchaser, acting reasonably;
(b) Purchaser By no later than July 30, 2003, the Company shall have performed received all shareholder and complied regulatory approvals which are necessary in all material respects with order to permit the terms Company to lawfully complete the transactions contemplated hereby including, without limitation, the approval of the Company shareholders (by way of an ordinary resolution) 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 approval of the Closing all the documents, payments and certificates contemplated in section 5.3 and elsewhere in this AgreementStock Exchange;
(c) during Between the Interim Perioddate hereof and the Closing, 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 material adverse change in the business or change that has had prospects of the Company (including the termination of employment of Thomas Koll or would be reasonably likely to have a Material Adverse Effect on Purchaser;George Reznik); and
(ed) 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 payable to W▇▇▇▇, GThe acqui▇▇▇▇▇▇ and M▇▇ ▇he Company of ce▇▇▇▇▇ Limited for ▇▇▇▇▇▇ of HiddenMind Technology, LLC pursuant to the preparation of a technical report on the PropertyAsset Purchase Agreement shall be completed before, and Purchaser shall have made arrangements for the repayment to Vendoror concurrently with, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 hereby. The obligations 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 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 Company to complete the transactions contemplated by this Agreement unless, at or before hereby shall be subject to the Closing, each following conditions precedent (which are for the sole benefit of the conditions listed below in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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.Company):
(e) during The Purchaser shall have delivered all of the Interim Period there shall not have been any event or change that has had or would be reasonably likely documents described in paragraph 4 below, in each case in form and substance satisfactory to have a Material Adverse Effect on the Company, acting reasonably;
(f) By no later than July 30, 2003, the conditions in Section 4.2 of the Option Agreement Company shall have been satisfied;
(g) Purchaser shall have obtained received all necessary corporate authorization shareholder and regulatory approvalapprovals which are necessary in order to permit the Company to lawfully complete the transactions contemplated hereby including, including without limitation, the approval of the TSX Venture Company shareholders (by way of an ordinary resolution) and the approval of the Stock 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) PurchaserThe 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 Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreementtransactions contemplated hereby.
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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated The obligations of each Investor to complete purchase Notes and consummate the sale of the Company Share pursuant to transactions contemplated by this Agreement unlessat the Initial Closing or any Subsequent Closing shall be subject to the fulfillment, at on or before the Closingdate of such closing (each a "Closing Date"), of each of the following conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorprecedent:
(a) The sale and purchase of the Notes, the execution of this Agreement and each other Transaction Document, and the consummation of the transactions contemplated hereby and thereby shall have been approved by a special committee of the Company established for such purpose and consisting of Jeff Green, Jeremy Simpson an▇ ▇▇▇▇▇ ▇▇le▇, ▇▇▇ ▇▇▇▇ ▇▇prova▇ ▇▇▇▇l have not been revoked or rescinded.
(b) The representations and warranties of Purchaser the Company contained in this Agreement 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 at the Closing;on and as of such Closing Date as though made on and as of such Closing Date.
(bc) Purchaser No event of default shall have performed occurred under the Notes or any other Transaction Document (an "Event of Default"), and complied in all material respects 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 in this Agreement on its part acceptable to be performed or complied with at or before the Closing Company and the Investors.
(e) The Company shall have executed and delivered or caused to have been executed the Registration Rights Agreement 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 such agreement 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory approvals and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect.
(f) With respect to each Subsequent Closing, including: the approval Investor(s) shall have received a certificate, dated as of the TSX Venture Exchange or any other stock exchange that the securities date of Purchaser are listed on or to which such Subsequent Closing and executed by 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 executive officer of the failure Company, certifying as to the satisfaction of Vendor to comply with its obligations under this Agreement, then Vendor the conditions set forth in 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
paragraphs (b) waive compliance with any such condition without prejudice to its right and (c) of termination in the event of non-fulfillment of any other conditionthis Section 3.
4.3 Purchaser shall not be obligated to complete the transactions contemplated by this Agreement unless(g) The Company, at or before the Closing, each of the conditions listed below in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor Reddline and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Secured Noteholders shall have executed and delivered or caused to have been 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 to Vendor at in connection therewith and the Closing Secured Note Purchase Agreement and all the such documents, payments agreements and certificates contemplated in section 5.2 instruments shall be of no further force and elsewhere in this Agreement;
(c) during the Interim Periodeffect. In addition, there Reddline shall have been no Order made filed UCC-3 Termination Statements and shall have taken such other action as necessary or any Legal Proceedings commenced or threatened for appropriate to release all liens granted by the purpose of enjoiningCompany to Reddline, preventing or restraining as collateral agent, and the completion of the transactions contemplated by this Agreement or the Option Agreement; and
(d) all regulatory approvals and consents Investors pursuant to the transactions contemplated by this 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 obtained 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 in full of no further force and effect, including the approval 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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated (a) The Company’s obligation to complete issue the sale of Note to the Company Share pursuant Subscriber is subject to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthat:
(ai) such issuance be conditionally accepted by the TSX;
(ii) the issuance of the 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 Purchaser in this Agreement shall be the Subscriber are true and correct in all material respects as at the Closing;Closing Date.
(b) Purchaser shall have performed and complied in all material respects with The Subscriber’s obligation to subscribe for the terms and conditions in this Agreement on its part Note is subject 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;following conditions:
(ci) 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 issue of the transactions contemplated Note having been approved 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 board of directors of the Company;
(fii) the conditions in Section 4.2 issue of the Option Agreement Note having been conditionally approved by the TSX;
(iii) the Company shall have provided evidence satisfactory to the Subscriber that the Company has obtained commitment to raise $500,000 in additional to the Loan Amount;
(iv) the Company shall have maintained on Closing from Export Development Canada (“EDC”) and 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 satisfieddischarged or postponed and subordinated to the security interest to be granted by the Company in favour of the Subscriber;
(gvii) 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 payable to W▇▇▇▇ ▇, G▇▇▇▇▇▇▇▇ and M(“▇▇▇▇▇▇▇▇▇”) shall have provided a limited recourse guarantee (the “Guarantee”) for the Company’s obligations under the Note, secured by a pledge of 800,000 shares in the Company beneficially owned by ▇▇▇▇▇▇▇▇▇ Limited for (the preparation of “Pledged Shares”) in accordance with a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days share pledge agreement by ▇▇▇▇▇▇▇▇▇ in favour of the Closing Date, of Subscriber (the balance of the Expenses“Share Pledge Agreement”);
(iviii) Purchaser, all covenants of the Company and Altius hereunder that are required to be performed on or prior to the Closing Date shall have entered into been performed;
(ix) the Assignment Agreement in Subscriber shall have been satisfied with the form set out in Schedule “B” to this Agreementresults of its due diligence review on the affairs of the Company; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(ax) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor as at the Closing all the documents, payments and certificates contemplated in section 5.2 and elsewhere in this Agreement;Date.
(c) during the Interim Period, there shall have been no Order made or If 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 conditions set forth in full force and effect, including the approval 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 Company; or
or (b) waive compliance with any such condition without prejudice above is not satisfied or waived prior to its right of termination in Closing, this subscription agreement shall terminate and the event of non-fulfillment of any other conditionparties shall have no further obligations hereunder.
Appears in 1 contract
Sources: Subscription Agreement (Adb Systems International LTD)
Conditions of Closing. 4.1 Vendor The obligations of each party hereunder shall not be obligated to complete the sale of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorsubject to:
(a) The accuracy in all material respects of the representations and warranties of Purchaser in this Agreement shall be true the other party hereto as of the date hereof and correct in all material respects at as of the ClosingClosing Date, as if such representations and warranties had been made again on and as of the Closing Date;
(b) Purchaser shall have performed and complied The performance in all material respects with by the terms and conditions in this Agreement on other party of its part to obligations hereunder which must be performed or complied with at or before prior to 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 AgreementDate;
(c) during the Interim Period, there The Company shall have been no Order made 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 Legal Proceedings commenced 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 threatened surrendered and not available 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;re-grant under such stock option plan.
(d) during The Registration Statement has been declared effective and no stop order suspending the Interim Period there effectiveness of the Registration Statement shall not have been any event or change that has had or would be reasonably likely to have a Material Adverse Effect on Purchaser;
issued; (e) Vendor shall have entered into a consulting agreement between Vendor and Purchaser, The stockholder approval referred to in a form satisfactory to Vendor and the Company;
(fparagraph 4(b) the conditions in Section 4.2 of the Option Agreement above shall have been satisfiedobtained;
(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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor 5.1 The Vendors shall not be obligated to complete the sale of the Company Share Purchased Shares pursuant to this Agreement unless, at on or before the ClosingClosing Date, each of the conditions listed below in this section 4.1 5.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors and compliance with which may be waived by the Company, on behalf of the Vendors, without prejudice to the right of termination in the event of non-fulfillment of any other condition::
(a) the representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects at the Closing;
(b) the 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 the Vendors at the Closing all the documents, payments and certificates contemplated in section 5.3 6.3 hereof 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 preventing, or restraining the completion of the transactions contemplated by this Agreement or the Option Agreement;
(d) during the Interim Period Period, and in respect of the Purchaser, there shall not have been any event or change that has had or would be reasonably likely to have occurred a Material Adverse Effect on PurchaserEffect;
(e) Vendor the Purchaser shall have entered into a consulting agreement between Vendor revised agreements with its Chief Executive Officer and Purchaserits Chief Financial 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 a form satisfactory to Vendor option and the Companyother Purchaser compensation plans;
(f) the conditions in Section 4.2 Purchaser shall have entered into an agreement with ▇▇▇▇ ▇▇▇▇▇ as President of the Option Agreement shall have been satisfiedCompany, terms 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 obtained all necessary corporate authorization and regulatory approval, including completed a private placement financing resulting in at least $3,000,000 of gross proceeds to 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.Purchaser;
(h) the Purchaser shall have made a cash payment to Vendor, by certified cheque, in an amount equal will appoint one (1) nominee of the Vendors to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation board of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days directors of the Closing Date, of the balance of the Expenses;Purchaser; and
(i) Purchaserall necessary regulatory, the Company shareholder and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory third-party approvals and consents to the transactions contemplated by this Agreement Agreement, or otherwise required, shall have been obtained and be in full force and effectobtained, including: 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 madeCanadian Securities Exchange.
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 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 5.2 The Purchaser shall not be obligated to complete the transactions contemplated by this Agreement unless, at on or before the ClosingClosing Date, each of the conditions listed below in this section 4.3 5.2 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaserthe 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 Vendor the Vendors and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor Company and the Company 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 Vendor the Purchaser at the Closing all the documents, payments and certificates contemplated in section 5.2 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 preventing, or restraining the completion of the transactions contemplated by this Agreement or Agreement;
(e) during the Option AgreementInterim Period, and in respect of the Company, there shall not have occurred a Material Adverse Effect; and
(df) all regulatory necessary regulatory, shareholder, and third-party approvals and consents to the transactions contemplated by this Agreement Agreement, or otherwise required, 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 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 Company; 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: Share Exchange Agreement
Conditions of Closing. 4.1 Vendor 6.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 shall have to be performed and complied in all material respects with the terms and conditions observed in this Agreement on its part prior to be performed or complied with at or before the Closing and shall have executed been performed 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 Agreementobserved;
(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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 6.2 If any condition in Section 4.1 section 6.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each the covenants and conditions of the Vendor Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and complied observed 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 Agreementrespects;
(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;
(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 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 approval 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;
(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 conditions in Section 4.2 of the Option Agreement Interim Period, there shall have been satisfied;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) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including the approval of Exchange has accepted 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” transaction pursuant to this Agreement.
4.4 6.4 If any condition in section 4.3 shall 6.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 4.1 Vendor 7.1 The Vendors and the Company shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:the Vendors:
(a) the 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 complied observed 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 Agreementrespects;
(c) during the Interim Periodreceipt 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) 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) there shall have been no Order event or change that has had or would be 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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 7.2 If any condition in Section 4.1 7.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors or the Company may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor the Vendors and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each the delivery of the Vendor Financial Statements from the Company to the Purchaser, and should the Financial Statements be considered by the TSXV to be insufficient for the purposes of the completion of the Transaction and the Company shall have performed receipt of Exchange Approval, such financial statements prepared in accordance with generally accepted accounting principles as is required under applicable Securities Laws and complied required in all material respects with the terms and conditions in this Agreement on their respective part order 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 Agreementreceive Exchange Approval;
(c) during the Interim Perioddelivery of the Technical Report by the Company to the Purchaser, there in such form as acceptable to the Purchaser, acting reasonably;
(d) 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 no Order made performed and observed in all material respects;
(e) the receipt of the Exchange Approval and any other consents contemplated by this Agreement or any Legal Proceedings commenced or threatened otherwise necessary for the purpose of enjoining, preventing or restraining this Agreement and the completion of the transactions contemplated by this Agreement or the Option Agreement; and
(d) all regulatory approvals herein, in form and consents content and upon such conditions, if any, acceptable to the transactions contemplated by this Agreement shall have been obtained Purchaser, and be all such approvals being in full force and effect, including the approval 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 receipt 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 fully executed Amending Agreement, then on the terms outlined in Section
2.4 herein, in such form as acceptable to the Purchaser in at 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 Company; 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.discretion;
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated 11.1 The obligations of the Agents and the Purchasers to deliver at the Closing Time executed Subscription Agreements, to complete the sale purchase of the Units and to perform all other obligations hereunder shall be conditional upon the Agents, in their sole discretion, being satisfied with the results of their due diligence investigations relating to the Company Share pursuant to this Agreement unless, and its business and upon the fulfilment at or before the Closing, each Closing Time of the following conditions, which conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for Company covenants to use its reasonable best efforts to fulfil or cause to be fulfilled prior to the exclusive benefit of VendorClosing Time:
(a) the representations Company shall have taken all necessary corporate action (including board and, if required, shareholder approvals) to authorize and warranties approve the execution and delivery of Purchaser in this Agreement shall be true the Transaction Documents and correct in all material respects at the Closingauthorization and issuance of the Securities;
(b) Purchaser the Company shall have performed obtained all requisite third party consents to proceed with the Offering;
(c) the Company shall have obtained and fully complied with all relevant statutory and regulatory requirements required to be complied with prior to the 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 Closing Date, signed by two officers or directors of the Company as the Agents may accept, certifying on behalf of the 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 Company of its obligations hereunder and thereunder;
(iv) there are no actions, suits, grievances, arbitration or 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 Company contained herein and in the Subscription Agreements are true and correct and all material respects with 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 this Agreement on its part 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 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 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 at on 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 Time shall have been no Order made so performed 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 complied with and all conditions required to be complied with 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and been complied in all material respects with. In providing their opinions, counsel may, where appropriate, rely on the opinions of local counsel and, with the terms and conditions in this Agreement respect to factual matters relevant to such opinions, may rely 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;
(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 officers of the transactions contemplated Company, other certificates issued by this Agreement or the Option Agreement; and
(d) all regulatory approvals agencies and consents to the transactions contemplated letters issued 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 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’s transfer agent.
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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The parties acknowledge that completion of the Company Share pursuant to this Agreement unless, at or before transaction provided for herein is conditional upon the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing:
(a) the Purchaser shall be satisfied, acting reasonably, that the Company has, as of the Closing Date, no outstanding liabilities, except for (i) unsecured liabilities to trade creditors incurred in the ordinary course of the Company's business, which shall not exceed (pound)125,000 and (ii) with respect to income taxes payable, as disclosed in such subparagraph 9(o) above.
(b) the Purchaser shall be satisfied with its negotiations with the employees and consultants of the Company with respect to Post-Closing employment;
(c) the Purchaser shall have received written confirmation from all secured parties and governmental bodies that the Purchased Shares may be transferred as contemplated hereby, free of all charges or encumbrances;
(d) all directors and officers of the 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 Purchaser, of any claim existing as at the Closing Date;
(f) 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 representations and warranties of Purchaser the Shareholder contained in this Agreement shall be true and correct in all material respects at as of the ClosingClosing Date with the same force and effect as if such representations and warranties had been made on and as of such date;
(bh) Purchaser all approvals requested for the transfer of the Purchased Shares shall have performed and complied in been obtained including the approval of the board of directors of the Company;
(i) the Shareholder shall have returned all material respects and documents of the Company in 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 the terms Shareholder and conditions in this Agreement on its part to be performed or complied with at or before the Closing Purchaser; and
(k) the Purchaser and the Shareholder shall have executed and delivered or caused to have been executed and delivered to Vendor at a forbearance agreement addressing 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 status of the transactions contemplated by this Navtech Flight Operations Support Software, systems products and services (including without limitation Navtech Master Products & Services Agreement or the Option Agreement;
No. 94-05) (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"Navtech FOMS").
(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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor 6.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 shall have to be performed and complied in all material respects with the terms and conditions observed in this Agreement on its part prior to be performed or complied with at or before the Closing and shall have executed been performed 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 Agreementobserved;
(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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 6.2 If any condition in Section 4.1 section 6.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each all outstanding securities of the Vendor Company convertible into Company Shares shall have been cancelled, and the Company shall not 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 any convertible securities outstanding 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 AgreementClosing;
(c) 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;
(d) 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;
(e) 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 approval 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 Company shall have been satisfiedentered into an employment agreement with ▇▇▇ ▇▇▇▇▇▇, on terms acceptable to the Purchaser;
(g) Purchaser the Company shall have obtained been released from all necessary corporate authorization obligations and regulatory approvalliabilities due and owing to ▇▇▇▇▇▇ Financial Inc. pursuant to the terms of an engagement letter entered into on January 1, including 2020;
(h) the approval Board of Directors of the TSX Venture Exchange, for Company shall have approved the issuance transfer 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 2Shares contemplated in this Agreement, 2009in accordance with the Articles of the Company; and
(hi) Purchaserduring the Interim Period, the Company and Altius there shall have entered into been no Order made or any Legal Proceedings commenced or threatened for the Assignment Agreement in purpose, or which could have the form set out in Schedule “B” to effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
4.4 6.4 If any condition in section 4.3 shall 6.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 4.1 Vendor 8.1 Newco shall not be obligated to complete the sale purchase of the Company Share Properties pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 8.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of VendorNewco:
(a) the The representations and warranties of Purchaser Crosshair and Paragon in this Agreement shall be true and correct in all material respects at the Closing;
(b) Purchaser Paragon 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 Vendor Newco at the Closing all the documents, payments and certificates documents contemplated in section 5.3 sections 7.2 and 7.3 and elsewhere in this Agreement;
(c) during 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 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 PurchaserArrangement;
(e) Vendor Crosshair and Newco shall have entered into a consulting purchase and sale agreement between Vendor for Crosshair’s interest in the Properties and Purchaser, in a form satisfactory any conditions to Vendor and the Companyperformance of that agreement shall have been satisfied or waived;
(f) the conditions in Section 4.2 of the Option Agreement The Arrangement shall have been satisfiedapproved by the securityholders of Crosshair at a duly called meeting of securityholders in accordance with applicable laws;
(g) Purchaser shall have obtained all necessary corporate authorization The interim order and regulatory approval, including the approval final order of the TSX Venture Exchange, for Supreme Court of British Columbia in respect of 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.Arrangement shall each have been obtained and shall not have been set aside;
(h) Purchaser The Pubco Shares shall have made a cash payment been duly and validly transferred to Vendor, by certified cheque, in an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days Newco as part of the Closing Date, of the balance of the Expenses;Arrangement; and
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) all 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 the TSX Venture Exchange or any other stock exchange that the securities of Purchaser 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.
4.2 8.2 If any condition in Section 4.1 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 Vendor Newco to comply with its obligations under this Agreement, then Vendor Newco in its sole discretion may, without limiting any rights or remedies available to Vendor Newco at law or in equity, either:
(a) terminate this Agreement by notice to PurchaserParagon 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.
4.3 Purchaser 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 4.3 8.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of PurchaserParagon:
(a) the The representations and warranties of Vendor Crosshair and the Company Newco in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor Newco and the Company Crosshair shall have performed and complied in all material respects with the terms and conditions in this Agreement on their respective 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 Vendor Paragon at the Closing all the documents, payments and certificates documents contemplated in section 5.2 sections 7.3 and 7.4 and elsewhere in this Agreement;
(c) during 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; andArrangement;
(d) all 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 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 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 any of Purchaser the Parties 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;
(fh) the conditions in Section 4.2 The Pubco Shares shall have been duly and validly transferred to Newco as part of the Option Agreement 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;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, acting reasonably, with the results of its due diligence investigation of Newco, including satisfaction with the approval tax implications of the TSX Venture Exchange, for Arrangement and the issuance sale of 10,000,000 Purchaser Shares at a price of $0.15 per share, through its legal and beneficial interest in the Subscription Receipts offering announced by the Company on December 2, 2009Properties to Newco; and
(hk) Purchaser, The Consideration Shares to be issued to Paragon shall not represent less than the Company and Altius shall have entered into the Assignment Agreement in the form percentage amounts set out in Schedule “B” to this Agreementat subsection 6.2 (a), (b), or (c).
4.4 8.4 If any condition in section 4.3 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 Purchaser Paragon to comply with its obligations under this Agreement, then Purchaser Paragon in its sole discretion may, without limiting any rights or remedies available to Purchaser Paragon at law or in equity, either:
(a) terminate this Agreement by notice to Vendor Newco and the CompanyCrosshair; 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 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 Supreme Court of British Columbia in respect of the Arrangement shall each have been obtained and shall not have been set aside;
(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 Parties are listed on or to 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 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 its sole discretion may, without limiting any rights or remedies available to Crosshair at law or in equity, either:
(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. 4.1 Vendor 6.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 shall have to be performed and complied in all material respects with the terms and conditions observed in this Agreement on its part prior to be performed or complied with at or before the Closing and shall have executed been performed 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 Agreementobserved;
(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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 6.2 If any condition in Section 4.1 section 6.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each all outstanding securities of the Vendor Company convertible into Company Shares shall have been cancelled, and the Company shall not 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 any convertible securities outstanding 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 AgreementClosing;
(c) 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;
(d) 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;
(e) 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 approval 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 Board of Directors of the Option Agreement Company shall have been satisfied;approved the transfer of the Company Shares contemplated in this Agreement, in accordance with the Articles of the Company; and
(g) Purchaser during the Interim Period, there shall have obtained all necessary corporate authorization and regulatory approvalbeen no Order made or any Legal Proceedings commenced or threatened for the purpose, including or which could have the approval effect, of preventing or restraining the completion 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 transactions contemplated 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 6.4 If any condition in section 4.3 shall 6.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 4.1 Vendor 5.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 complied observed 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 Agreementrespects;
(c) during the Interim Periodreceipt 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 Order 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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 5.2 If any condition in Section 4.1 section 5.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 5.3 The Purchaser shall not be obligated to complete the purchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor the Vendors and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each the covenants and conditions of the Vendor Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and complied observed 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 Agreementrespects;
(c) during the Interim Period, there shall have been no Order made receipt of any consents contemplated by this Agreement or any Legal Proceedings commenced or threatened otherwise necessary for the purpose of enjoining, preventing or restraining this Agreement and the completion of the transactions contemplated by this Agreement or the Option Agreement; and
(d) all regulatory approvals herein, in form and consents content and upon such conditions, if any, acceptable to the transactions contemplated by this Agreement shall have been obtained Purchaser, and be all such approvals being in full force and effect, including the approval 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.;
(ed) during the Interim Period there shall not have been any no event or change that has had or would be reasonably likely to have a Material Adverse Effect on the CompanyCompany or the Property;
(e) the Property being free of all Adverse Interests, unless otherwise disclosed to the Purchaser;
(f) the conditions in Section 4.2 of the Option Agreement shall have been satisfiedbeing in good standing;
(g) Purchaser the Board of Directors of the Company shall have obtained all necessary corporate authorization and regulatory approval, including approved the approval transfer of the TSX Venture Exchange, for the issuance of 10,000,000 Purchaser Company Shares at a price of $0.15 per share, through the Subscription Receipts offering announced by and the Company on December 2Warrants contemplated in this Agreement, 2009in accordance with the Articles of the Company; and
(h) Purchaser, the Company and Altius there shall have entered into been no order made or any Legal Proceedings commenced or threatened for the Assignment Agreement in purpose, or which could have the form set out in Schedule “B” to effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
4.4 5.4 If any condition in section 4.3 shall 5.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Securities Purchase Agreement
Conditions of Closing. 4.1 Vendor 6.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 shall have to be performed and complied in all material respects with the terms and conditions observed in this Agreement on its part prior to be performed or complied with at or before the Closing and shall have executed been performed 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 Agreementobserved;
(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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 6.2 If any condition in Section 4.1 section 6.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor 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 conditioncondition for its benefit.
4.3 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 by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each the covenants and conditions of the Vendor Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and complied observed 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 Agreementrespects;
(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;
(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 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 approval 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;
(e) the assets of the Company being free of all Adverse Interests, unless otherwise agreed by the Purchaser;
(f) each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Advisor – Finance), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Lead Investigator – Clinical Research), ▇▇▇▇▇ ▇▇▇▇▇▇ (General Manager) and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-Cyrener (Qualified Person; President), having agreed to continue in their present positions with the conditions in Section 4.2 Subsidiary, on substantially the same terms, for a period of no less than twenty-four (24) months following the Option Agreement shall have been satisfiedClosing Date;
(g) Purchaser the Board of Directors of the Company shall have obtained all necessary corporate authorization and regulatory approval, including approved the approval transfer of the TSX Venture ExchangeCompany Shares contemplated in this Agreement, for in accordance with the issuance Articles of 10,000,000 Purchaser Shares at a price Incorporation of $0.15 per share, through the Subscription Receipts offering announced by the Company on December 2, 2009Company; and
(h) Purchaserduring the Interim Period, the Company and Altius there shall have entered into been no Order made or any Legal Proceedings commenced or threatened for the Assignment Agreement in purpose, or which could have the form set out in Schedule “B” to effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
4.4 6.4 If any condition in section 4.3 shall 6.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the The sale of the Company Share pursuant Units is subject to this Agreement unless, at or before the Closing, each accuracy of the conditions listed below in this section 4.1 has been satisfiedrepresentations and warranties of the parties hereto, it being understood that to the said conditions are included for performance by such parties of their respective obligations hereunder and to the exclusive benefit of Vendorfollowing further conditions:
(a) The Registration Statement shall remain effective and at each Closing Time no order suspending the effectiveness thereof shall have been issued under the 1933 Act or proceeding therefor initiated or threatened by the SEC, and the NFA shall have accepted the Prospectus as a Disclosure Document pursuant to CFTC Regulations and NFA Rules without a finding of further deficiencies.
(b) Upon request, the General Partner shall deliver a certificate to the effect that: (i) no order suspending the effectiveness of the Registration Statement has been issued and no proceedings therefor have been instituted or to the best of its knowledge upon due and diligent inquiry threatened by the SEC, the CFTC or other regulatory or self-regulatory body; (ii) the representations and warranties of Purchaser the 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 covenants and agreements herein contained which are required to be performed on their part at or prior to such Closing Time.
(c) Executed copies of the Limited Partnership Agreement, any Additional Selling Agent Agreements and 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;parties.
(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 The parties hereto shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization furnished with such additional information, opinions and regulatory approvaldocuments, including supporting documents relating to parties described in the approval 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 TSX Venture ExchangeUnits as herein contemplated and related proceedings, for in order to evidence the issuance accuracy or completeness of 10,000,000 Purchaser Shares at a price any of $0.15 per share, through the Subscription Receipts offering announced representations or warranties or the fulfillment of any of the conditions herein contained; and all actions taken by the Company on December 2, 2009.
(h) Purchaser parties hereto in connection with the sale of the Units as herein contemplated shall have made a cash payment be reasonably satisfactory in form and substance to Vendor, by certified cheque, in an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited & Bird LLP, counsel for the preparation of a technical report on General Partner and to the Property, and Purchaser shall have made arrangements counsel for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 Selling Agent. 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 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 transactions contemplated by this Agreement unless, at or before the Closing, each of the conditions listed below specified in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 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 before the prior to such Closing or if Time, and any such condition is cancellation or becomes impossible termination shall be without liability of any party to satisfy, any other party other than in respect of Units already sold and except as a result otherwise provided in Sections 6 and 8 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 Company; 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: Selling Agreement (S&p Managed Futures Index Fund Lp)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligations of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfiedparties hereunder are subject to the accuracy of the representations and warranties of the other parties hereto, it being understood that to the said conditions are included for performance by such other parties of their respective obligations hereunder and to the exclusive benefit of Vendorfollowing further conditions:
(a) At each Subsequent Closing Time no order suspending the representations effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceeding therefor initiated or threatened by the SEC and warranties of Purchaser in this Agreement no objection to the content thereof shall be true and correct in all material respects at have been expressed or threatened by the Closing;CFTC or NFA.
(b) Purchaser Upon the request of any party hereto, the parties hereto shall have performed been furnished with such information, opinions and complied documents (including the opinions, certificates and other documents described in Section 8 of the 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 the lead selling agent) and CISFS which is superseded by this Agreement), 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 material respects actions taken by the parties hereto in connection with the terms sale of the Units as herein contemplated shall be reasonably satisfactory in form and conditions in this Agreement on its part substance to be performed or complied with at or before counsel to 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;parties hereto.
(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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the The representations and warranties of Vendor and the Company in this Agreement set forth herein shall be true and correct in all material respects at the Closing;
(b) Each restated as of each Subsequent Closing Time as if made as of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 madedate thereof.
(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 Company; 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: Selling Agreement (JWH Global Trust)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale All of the Company Share pursuant to obligations of the parties under this Agreement unlessare subject to the fulfillment, at prior to or before on the Closingclosing date set forth in Section 4 of this Agreement, of each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing conditions:
(a) the 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 Delivery 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and Mof the following:
(i) Certificates for the SJI Stock described in Section 5 hereof, endorsed in blank; and
(ii) A certificate of ▇▇▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) that 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties made by him contained in Section 9 of Vendor and the Company in this Agreement shall be true on and correct as of the closing date set forth in all material respects Section 4 of this Agreement as though such representations and warranties were made at the Closing;and as of such date, and shall be true on and as of said closing date as though such representations and warranties were made at and as of such date.
(b) Each Delivery by Belco of the Vendor following:
(i) Evidence of the filing 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, which such Series A Preferred Stock is a component of the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 and elsewhere in this AgreementBelco Stock;
(cii) during Evidence of the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for subsequent filing of the purpose Certificate of enjoining, preventing or restraining 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 completion formation of the Belco Subsidiary and the conclusion of the transactions contemplated by this Agreement or the Option Agreement; and
(d) related thereto, all regulatory approvals and consents to the transactions contemplated by this Agreement shall have been obtained and be as set forth in full force and effect, including the approval 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 CompanySection 6 hereof;
(fiv) the conditions in Section 4.2 Delivery of the Option Agreement shall have been satisfiedresignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as an officer and director of Belco to be effective on the Closing Date;
(gv) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including the approval Delivery of the TSX Venture Exchange, for resignation of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as an officer and director of Belco to be effective on 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; andClosing Date;
(hvi) 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 Written consent of the failure Belco Board 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 Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other conditionDirectors electing ▇.
Appears in 1 contract
Conditions of Closing. 4.1 Vendor shall not be obligated to complete The Underwriter has entered into this Agreement in reliance on the sale representations and warranties of the Company Share pursuant 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 unless, to purchase and pay for the Bonds is subject to the performance by the City of its obligations to be performed hereunder at or before the Closing, each of and also subject to the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:following conditions:
(a) At the time of Closing (1) the representations and warranties of Purchaser the City contained herein are true, complete and correct with the same effect as if made on the date of Closing, (2) this Agreement, the Deed of Trust and the Trust Agreement are in full force and effect and have not been amended, modified or supplemented except as may have been agreed to by the 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 Underwriter.
(b) The Underwriter has the 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 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 been 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 Department of the Treasury or the Internal Revenue Service of the United States, in 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, 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 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 an extent as, in the opinion of the Underwriter, affects materially and 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 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 net capital requirements of 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) On or before the date of the Closing, the Underwriter has received the following documents in form and substance satisfactory to the Underwriter and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, 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 shall be true are true, accurate and correct complete in all material respects at as of the Closingdate 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;
(bB) Purchaser shall have performed and complied except as may be disclosed 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 PeriodOfficial Statement, there shall have been is no Order made litigation or any Legal Proceedings commenced other proceeding before any court or governmental body or agency pending or, to the best of such official’s knowledge, threatened for against or affecting the purposeCity 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 which could have in any way contesting or affecting the effectvalidity of the Bonds or any proceedings of the City taken with respect to the sale thereof, of enjoiningor wherein an unfavorable decision, preventing ruling or restraining the completion of finding would materially and adversely affect (1) the transactions contemplated by this Agreement or the Option Agreement;
Official Statement, (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;
(f2) the conditions in Section 4.2 organization, existence or powers of the Option Agreement shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including City or the approval title to the office of any 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days members of the Closing DateCity Council, (3) the business, properties or assets or the condition, financial or otherwise, of the balance 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 Expenses;
transactions contemplated hereby) or (i5) Purchaser, the Company and Altius shall have entered into tax treatment of the Assignment Agreement interest on the Bonds as described in the form set out in Schedule “B” to this AgreementOfficial Statement; and
(jC) all regulatory approvals the Official Statement did not as of its date and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including: the approval does not as of the TSX Venture Exchange date of Closing contain any untrue statement of a material fact or any other stock exchange that the securities of Purchaser are listed on or omit 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 state a result of the failure of Vendor to comply with its obligations under this Agreement, then Vendor in 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and complied in all material respects with the terms and conditions in this Agreement on their respective part fact required 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;
(c) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened stated therein for the purpose of enjoiningfor which the Official Statement is to be used or necessary to make the statements therein, preventing or restraining in the completion light of the transactions contemplated by this Agreement circumstances under which they were made, not misleading, provided that no representation or the Option Agreement; and
(d) all regulatory approvals and consents warranty is made with respect to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including information with respect to the approval offering 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 Bonds set forth 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 approvalinside cover page of, 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 stabilizing legend in Schedule or under the heading “BUNDERWRITING” 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 Official Statement or in equity, either:
(a) terminate this Agreement by notice Appendix E to Vendor and the Company; 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.Official Statement;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of Closing. 4.1 Vendor The obligations of each party hereunder shall not be obligated to complete the sale of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorsubject to:
(a) the accuracy in all material respects of the representations and warranties of Purchaser in this Agreement shall be true the other party hereto as of the date hereof and correct in all material respects at as of the ClosingClosing Date, as if such representations and warranties had been made again on and as of the Closing Date;
(b) Purchaser shall have performed and complied the performance in all material respects with by the terms and conditions in this Agreement on other party of its part to obligations hereunder which must be performed or complied with at or before prior to 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 AgreementDate;
(c) during the Interim Period, there Company shall have been no Order made or any Legal Proceedings commenced or threatened for amended its bylaws to provide that effective on the purposeClosing Date, or which could have the effectCompany, of enjoining, preventing or restraining without the completion approval of the transactions contemplated owners of a majority of the Common Stock, shall not grant to any officer of the Company 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, 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; and the bylaws will provide that this Agreement provision regarding stock options cannot be amended or eliminated without the Option Agreementapproval of the owners of a majority of the Common Stock;
(d) during the Interim Period there Registration Statement has been declared effective and no stop order suspending the effectiveness of the Registration Statement shall not have been any event or change that has had or would be reasonably likely to have a Material Adverse Effect on Purchaserissued;
(e) Vendor the stockholder approval referred to in Paragraph 4(b) above shall have entered into a consulting agreement between Vendor and Purchaser, in a form satisfactory to Vendor and the Company;been obtained; and
(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 approvalreceived the legal opinion of Benesch, including the approval of the TSX Venture ExchangeFriedlander, 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 payable to WCopl▇▇ & ▇ron▇▇▇ ▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for counsel to the preparation of a technical report on the PropertyCompany, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out forth in Schedule “B” to this Agreement; and
(j) 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 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 madeExhibit A hereto.
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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the The purchase and sale of the Company Share pursuant Purchased Assets is subject to this the usual conditions of closing in an asset purchase transaction, all of which will be included in the Purchase Agreement unlessand including, at or before without limitation, the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing:
(a) all of the covenants of the parties will have been performed;
(b) all of the representations and warranties of Purchaser in this Agreement shall the parties will be true and correct in all material respects at the Closing;
(b) Purchaser shall have performed time they were given 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 as at the Closing all the documents, payments and certificates contemplated in section 5.3 and elsewhere in this AgreementDate;
(c) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for Purchaser will be satisfied in its sole discretion as to the purpose, or which could have results of its due diligence investigation with respect to the effect, of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement or the Option AgreementPurchased Assets;
(d) during the Interim Period there shall not have been 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 event or change that has had or would permitted encumbrances to be reasonably likely to have a Material Adverse Effect on Purchaserset out in the Purchase Agreement;
(e) Vendor shall all consents and approvals to the sale and purchase of the Purchased Assets, as reasonably determined by the parties, will have entered into a consulting agreement between Vendor and Purchaser, in a form satisfactory to Vendor and the Companybeen obtained;
(f) except as disclosed by either party, no action or proceeding will be pending or threatened to enjoin, restrict or affect the conditions in Section 4.2 purchase of the Option Agreement shall have been satisfiedPurchased Assets;
(g) Purchaser shall no substantial damage or material adverse change to Purchased Assets will have obtained all necessary corporate authorization and regulatory approval, including occurred from the approval date of the TSX Venture Exchange, for Purchase Agreement to 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.Closing Date;
(h) Purchaser shall the Vendor will have made a cash payment to Vendor, by certified cheque, complied with any applicable bulk legislation in an amount equal respect of the sale of the Purchased Assets to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the ExpensesPurchaser;
(i) Purchaserany and all regulatory approvals have been obtained and including, without limitation, the Company and Altius shall have entered into approval of NYSE Amex for the Assignment Agreement in issuance of the form set out in Schedule “B” Shares by the Purchaser to this Agreement; andthe Vendor;
(j) all regulatory approvals and consents to the transactions contemplated by this Agreement transaction shall have been obtained and be in full force and effect, including: approved by the approval vote of two-thirds 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the ClosingVendor's shareholders;
(bk) Each the Purchaser shall simultaneously close its acquisition of the Vendor and remaining 99% interest in the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 Option AgreementSTMV; 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor 5.1 The Vendors shall not be obligated to complete the sale of the Company Share Vendors Shares pursuant to this Agreement unlessand the other transactions contemplated herein, at or before the Closing, unless each of the conditions listed below in this section 4.1 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Vendors:
(a) the 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 shall have to be performed and complied in all material respects with the terms and conditions observed in this Agreement on its part prior to be performed or complied with at or before the Closing and shall have executed been performed 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 Agreementobserved;
(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 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;
(df) during the Interim Period there shall not have Purchaser Shares having been any event or change that has had or would be reasonably likely to have a Material Adverse Effect on Purchaservoluntarily delisted from the TSXV;
(eg) Vendor shall have entered into a consulting agreement between Vendor the Purchaser having completed the Purchaser Financing for gross proceeds of not less than $2,000,000 and Purchaserhaving sufficient working capital to meet the minimum listing requirements prescribed by the Exchange;
(h) the Purchaser having changed its name to "Blender Bites Limited", in a form satisfactory or such other name as is acceptable to Vendor the Purchaser and the Company;
(fi) the conditions in Section 4.2 current board of directors and management of the Option Agreement shall have Purchaser having been satisfiedreconstituted to include an equal number of nominees of the Company;
(gj) the Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including not be on the approval list 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 defaulting issuers maintained 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement Securities Authorities in the form set out in Schedule “B” to this AgreementReporting Jurisdictions; and
(jk) all regulatory approvals and consents to no Securities Authority, the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including: the approval of the TSX Venture Exchange TSXV or any other stock exchange that the competent authority, including any other Governmental Authority, shall have issued any order to cease or suspend trading or distribution of any securities of the Purchaser are listed on 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 which an application for listing has cease or suspend trading or distribution of any securities of the Purchaser have been madecommenced.
4.2 5.2 If any condition in Section 4.1 5.1 hereof 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 the Vendors or the Company to comply with its their obligations under this Agreement, then Vendor in its sole discretion the Vendors may, without limiting any rights or remedies available to Vendor the 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 termination in the event of the non-fulfillment of any other conditioncondition for its benefit.
4.3 5.3 The Purchaser shall not be obligated to complete the purchase of the Vendors Shares pursuant to this Agreement and the other transactions contemplated by this Agreement unlessherein, at or before the Closing, unless each of the conditions listed below in this section 4.3 has been is satisfied, it being understood that the said conditions are included for the exclusive benefit of the Purchaser:
(a) the representations and warranties of Vendor 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) Each the covenants and conditions of the Vendor Vendors and the Company to be performed and observed in this Agreement prior to or at Closing shall have been performed and complied observed 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 Agreementrespects;
(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 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 approval 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;
(e) the Assets of the Company being free of all Adverse Interests, unless otherwise agreed by the Purchaser;
(f) the conditions in Section 4.2 liabilities of the Option Agreement Company shall have been satisfiednot exceed $250,000, excluding the loans described in 3.2(m) and costs incurred by the 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 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) ▇▇▇▇▇▇▇ ▇▇▇▇▇ having 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, there 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 obtained all necessary corporate authorization and regulatory approval, including approved the approval transfer of the TSX Venture ExchangeVendors Shares contemplated in this Agreement, for in accordance with the issuance Articles of 10,000,000 Purchaser Shares at a price Incorporation of $0.15 per share, through the Subscription Receipts offering announced by the Company on December 2, 2009Company; and
(hm) Purchaserduring the Interim Period, the Company and Altius there shall have entered into been no Order made or any Legal Proceedings commenced or threatened for the Assignment Agreement in purpose, or which could have the form set out in Schedule “B” to effect, of preventing or restraining the completion of the transactions contemplated by this Agreement.
4.4 5.4 If any condition in section 4.3 shall Section 5.3 hereof has 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 the Purchaser to comply with its obligations under this Agreement, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice to Vendor and the CompanyCompany 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 conditioncondition for its benefit.
Appears in 1 contract
Sources: Share Purchase Agreement (RewardStream Solutions Inc.)
Conditions of Closing. 4.1 Vendor Closing shall not be obligated to complete the sale occur until all of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the following terms and conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of VendorFFPL have been fulfilled and/or performed:
(a) the representations Company having executed:
(i) the Aries Sale and warranties Purchase Agreement and the Pluto 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 Pluto Hypothec, the Aries General Assignment and the Pluto General Assignment, each in favour of Purchaser in this Agreement shall be true and correct in all material respects at FFPL; and
(iv) the ClosingVessel Loan;
(b) Purchaser shall have performed and complied the Company delivering to NGIL all necessary corporate authorities approving the execution of the documents set out 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 AgreementClause 4.1(a);
(c) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purposeeach of PSU and MKA providing documentary evidence satisfactory to NGIL that both PSU and MKA have, or which could have will on the effectClosing Date have, of enjoining, preventing or restraining the completion funds in place to each pay for 50% of the transactions contemplated by this Agreement or the Option AgreementClass B Shares in full;
(d) during the Interim Period there shall not have been any event or change that has had or would be reasonably likely to have Parties finalising and, in the presence of a Material Adverse Effect on Purchasernotary public in Indonesia, executing the amended Articles;
(e) Vendor shall have entered into the Parties finalising and submitting:
(i) to BKPM, a consulting agreement between Vendor final Foreign Investment Application (Model 1/PMA Application) together with annexes and Purchasersupporting documents, seeking approval of, the proposed activity of the Company and structure of the Shareholders’ investment in a form satisfactory to Vendor and 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 conditions in Section 4.2 Company having obtained each of the Option Agreement shall have been satisfiedfollowing:
(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) Purchaser shall have obtained confirmation being received in writing by all necessary corporate authorization and regulatory approval, including the approval of the TSX Venture ExchangeParties that all approvals, for the issuance licences and consents of 10,000,000 Purchaser Shares at a price of $0.15 per shareBKPM, through the Subscription Receipts offering announced by 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 December 2, 2009.terms satisfactory to NGIL;
(h) Purchaser the covenants, representations and warranties of each of the Company, PSU and MKA contained in Clause 15 shall be true and correct, each and every one of which is hereby deemed to be a condition and NGIL shall have made received a cash payment to Vendor, by certified chequecertificate dated the Closing Date, in an amount equal form satisfactory to counsel for NGIL, signed under seal by each of the Company and PSU to the feeseffect that such covenants, expenses representations and taxes paid or payable warranties referred to W▇▇▇▇, G▇▇▇▇▇▇ above are true and M▇▇▇▇▇ Limited for the preparation of a technical report correct on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days as of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the composition of the Board of Commissioners and the Board of Directors of the Company and Altius set forth in Clause 10.2 shall have entered into be completed;
(j) the Assignment Agreement new capital structure of the Company set forth in the form set out in Schedule “B” to this AgreementClause 2.2 shall be completed; and
(jk) all regulatory approvals and consents to the transactions contemplated no legislation (whether by this Agreement statute, by-law, regulation or otherwise) shall have been obtained enacted or introduced which, in the opinion of NGIL, adversely affects or may adversely affect the operations and be in full force and effect, including: the approval Business 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 madeCompany.
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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale 4.01. Buyer, AFC, AHC, Eagle and ▇▇▇▇▇▇ Conditions. The obligations of the Company Share pursuant to Buyer, AFC, AHC, Eagle and ▇▇▇▇▇▇ under this Agreement unlessare subject, at or before the Closingtheir option, each of the conditions listed below in this section 4.1 has been satisfiedto compliance by Seller, it being understood that the said conditions are included for the exclusive benefit of Vendor:
(a) the representations PFDC 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 PICD in all material respects with the terms and conditions in this Agreement on its part covenants to be performed or complied with at or before by Seller, PFDC and PICD, respectively, as set forth in Article III hereof, the contribution of the PICD PANS pursuant to Section 1.01 hereof, the delivery of Deep Seas LP Interest to Buyer pursuant to Section 1.02 hereof, and to the satisfaction of the following conditions:
(a) Each of Seller, PFDC and PICD shall have delivered a certificate to Buyer, dated as of the Closing Date, stating that the representations and shall have executed warranties made by Seller, PFDC and delivered or caused to have been executed PICD in Section 2.01 hereof are true and delivered to Vendor at correct as of the Closing all the documents, payments and certificates contemplated in section 5.3 and elsewhere in this Agreement;Date.
(ci) during the Interim Period, there No action or proceeding shall have been no Order made instituted before a court or other governmental body by any Legal Proceedings commenced or threatened for the purposeperson, governmental agency, or which could public authority to restrain or prohibit the transactions contemplated by this Agreement; and (ii) no governmental agency shall have given notice to the effect, of enjoining, preventing or restraining the completion effect that consummation of the transactions contemplated by this Agreement would constitute a violation of any law 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 it intends 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 commence proceedings to Vendor and the Company;
(f) the conditions in Section 4.2 restrain consummation 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, 2009transactions contemplated hereby.
(hc) Purchaser shall have made a cash payment to Vendor, by certified cheque, in an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇▇▇, GAFC, 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 ▇▇▇▇▇▇ (and Many assignee thereof) shall have been obtained and PICD shall have paid the reasonable fees and expenses of counsel to Chemical Bank, as Agent, in connection therewith.
(e) Simultaneous with the Closing hereunder (i) Falcon, Ltd. shall have sold its assets to ▇▇▇▇▇▇ Limited for the preparation of a technical report on the PropertyOceanics Pacific Ltd. and (ii) Falcon, and Purchaser Ltd. shall have made arrangements for the repayment to Vendordissolved and distributed its assets in accordance with that certain Partnership Dissolution Agreement dated of even date herewith, within 120 days of the Closing Dateeffective December 31, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 made1994.
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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Terminated Ancillary Agreements shall be terminated without liability to 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 Agreementparties thereunder.
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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the The sale of the Company Share pursuant Units is subject to this Agreement unless, at or before the Closing, each accuracy of the conditions listed below in this section 4.1 has been satisfiedrepresentations and warranties of the parties hereto, it being understood that to the said conditions are included for performance by such parties of their respective obligations hereunder and to the exclusive benefit of Vendorfollowing further conditions:
(a) The Registration Statement shall have become effective and at each Closing Date no order suspending the representations effectiveness thereof shall have been issued under the 1933 Act or proceeding therefor initiated or threatened by the SEC, and warranties the NFA shall have accepted the Prospectus as a Disclosure Document pursuant to CFTC Regulations and NFA Rules without a finding of Purchaser further deficiencies.
(b) At or prior to the Initial Closing Date, Katten Muchin Zavis Rosenman counsel to the General Partner, sha▇▇ ▇▇▇▇▇▇▇ ▇▇s ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ 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 this 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 shall 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 true 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 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 Closing;
time the Prospectus and any amendments or supplements thereto were first issued, the Prospectus (b) Purchaser shall have performed 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 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 requirements of the transactions contemplated by this Agreement or 1933 Act, SEC Regulations, the Option Agreement;
(d) during Commodity Act, 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 CFTC Regulations 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, 2009NFA Rules.
(hx) Purchaser shall have made a cash payment to Vendor, by certified cheque, Assuming operation in an amount equal to accordance with the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) PurchaserProspectus, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 Fund will not be obligated to complete the transactions contemplated an "investment company" or a company "controlled" 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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.an
Appears in 1 contract
Sources: Selling Agreement (Grant Park Futures Fund Limited Partnership)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete The Subscriber acknowledges and agrees that the sale Corporation is relying on the truth of the Company Share pursuant to this Agreement unless, at or before the Closing, each representations and warranties of the conditions listed below Subscriber contained in this section 4.1 has been satisfiedSubscription Agreement as of the date of this Subscription Agreement, it being understood that and as of the said Closing Time as if made at and as of the Closing Time, and the fulfillment of the following additional conditions are included for prior to the exclusive benefit of VendorClosing Time:
(a) at or prior to the time and date specified by the Corporation to the Subscriber:
(i) the Subscriber having made payment of the Subscription Amount in a manner as described below or in such other manner as may be provided for by the Corporation. 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) the Subscriber having properly completed, signed and delivered this Subscription Agreement (including all applicable Schedules attached hereto) to: MedMen Enterprises, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ With a Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP 2100 Scotia Plaza ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(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 Purchaser in this Agreement shall be the Subscriber set forth herein being true and correct in all material respects at as of the ClosingClosing Time;
(bd) Purchaser shall have performed all covenants and complied in all material respects with the terms and conditions in this Agreement on its part agreements contained herein to be performed or complied with at by the Subscriber on or before prior to the Closing and shall have executed and delivered Time having been performed or caused to have been executed and delivered to Vendor at complied with in all respects by 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 PurchaserSubscriber;
(e) Vendor shall have entered into a consulting agreement between Vendor the Corporation having obtained all necessary approvals, waivers, acknowledgements and Purchaser, consents in a form satisfactory to Vendor and respect of the CompanyOffering;
(f) the conditions Corporation having accepted the Subscriber’s subscription, in Section 4.2 of the Option Agreement shall have been satisfied;whole or in part; and
(g) Purchaser shall have obtained all necessary corporate authorization the issue and regulatory approval, including the approval sale of the TSX Venture Exchange, for Shares being exempt from the issuance of 10,000,000 Purchaser Shares at requirement to file 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 prospectus or registration statement under applicable Securities Laws relating to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days sale of the Closing DateShares, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 Option Agreement; and
(d) all regulatory Corporation having received such orders, consents or approvals and consents as may be required to permit such sale without the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the approval of the TSX Venture Exchange requirement to file a prospectus or any other stock exchange that the securities of any of Purchaser are listed on or to which an application for listing has been maderegistration statement.
(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 Company; 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
Conditions of Closing. 4.1 Vendor This Agreement shall not be obligated to complete become effective upon the sale receipt by the Agent, with copies for each Bank, of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:
following: (a) the representations and warranties an executed original counterpart of Purchaser in this Agreement shall be true and correct in all material respects at the Closing;
Agreement; (b) Purchaser shall have performed certified copies of any amendments to the Partnership Agreement and complied in all material respects with the terms and conditions in this Management 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 documentssince June 30, payments and certificates contemplated in section 5.3 and elsewhere in this Agreement;
1993; (c) during certified copies of all documents relating to the Interim Perioddue authorization and execution by the Borrower of this Agreement as the Agent may reasonably request, there shall have been no Order made including, without limitation, all partnership actions taken by the Borrower authorizing (i) the execution and delivery by the Borrower of this Agreement and the other Loan Documents, (ii) its performance of all of its agreements and obligations under this Agreement and under the other Loan Documents, and (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 specimen signatures of each individual authorized to give notices, sign or any Legal Proceedings commenced or threatened for act on behalf of the purpose, or which could have the effect, of enjoining, preventing or restraining the completion of Borrower in connection with the transactions contemplated by this Agreement or and 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;
other Loan Documents; (e) Vendor shall have entered into a consulting agreement between Vendor 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 Borrower authorizing the execution and Purchaser, in a form satisfactory to Vendor delivery by the General Partner on behalf of the Borrower of this Agreement and the Company;
other Loan Documents; (f) an incumbency certificate, dated the conditions in Section 4.2 date hereof, signed by the Secretary or Assistant Secretary of the Option Agreement shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including the approval General Partner acting on behalf of the TSX Venture ExchangeBorrower hereunder, for setting forth the issuance names and specimen signatures of 10,000,000 Purchaser Shares at a price of $0.15 per shareeach individual authorized to give notices, through the Subscription Receipts offering announced by the Company sign or act 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days behalf of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement Borrower in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory approvals and consents to 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 Borrower and each General Partner; (h) a duly completed and executed Federal Reserve Form U-1, describing all Margin Stock then held by the Borrower in its investment portfolio and all Eligible Assets, in the form required by such Form U-1; (i) an opinion from Judy ▇. ▇▇▇▇▇▇▇, ▇▇q., counsel to the Borrower, and Cony▇▇▇, ▇▇ll & ▇ear▇▇▇, ▇▇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 been obtained and be requested 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 order to comply with its obligations under this Agreement, then Vendor in its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, either:
(a) terminate this Agreement applicable rules and regulations promulgated 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 Federal Reserve Board and other condition.
4.3 Purchaser 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 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 governmental 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 Agreementauthorities.
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 Company; 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: Credit Agreement (FMR Corp)
Conditions of Closing. 4.1 Vendor (1) The 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 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 not have executed Exhibit A and Exhibit B to this Agreement.
(2) The Subscriber’s obligations to purchase the Offered Securities at the Closing Time shall be obligated subject to the following conditions, which conditions are for the sole benefit of the Subscriber and may be waived in writing in whole or in part by the Subscriber, in its sole discretion:
(a) the Company and the Subscriber shall have entered into this Agreement;
(b) the Company shall have filed and received notice of effectiveness of the Certificate of Designations from the Delaware Secretary of State;
(c) the Subscriber shall have received at the Closing Time: (i) a stock certificate of the 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 Company by the Chief Executive Officer and the Chief Financial Officer of the Company or any other officer acceptable to the Subscriber addressed to the Subscriber certifying, to the best of the 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 required by any Governmental Authority, or any other third party necessary to complete the sale of the Company Share pursuant to this Agreement unless, 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 or before the Closing, opening of trading on the Closing Date; and
(n) each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:
(a) the representations and warranties of Purchaser the Company contained in this Agreement shall be true and correct 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 documentsrespects, 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days as of the Closing DateTime, to the satisfaction of the balance of the Expenses;
(i) PurchaserSubscriber, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory approvals and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effectacting reasonably, 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and complied in all material respects with fulfilled each of the terms and conditions covenants contained 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 satisfaction of the Subscriber. If the Company fails to have been executed and delivered to Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 and elsewhere satisfy any condition described in this Agreement;
(cSection 6(2) during by May 7, 2021, unless waived by the Interim PeriodSubscriber, 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 Subscriber may terminate this Agreement and the transactions contemplated by this Agreement or the Option Agreement; and
(d) all regulatory approvals and consents hereby effective immediately upon delivery of written notice thereof to the 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 any of Purchaser are listed on or to which an application for listing has been madeCompany.
(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 Company; 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: Securities Purchase Agreement (Global Crossing Airlines Group Inc.)
Conditions of Closing. 4.1 Vendor shall not be obligated The following are conditions precedent to the obligation of the Agent to complete the sale Closing and of the Company Share pursuant Purchasers to this Agreement unlesspurchase the Offered Securities, at which conditions the Corporation hereby covenants and agrees to use commercially reasonable best-efforts thereof to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or before in part by the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of VendorAgent:
(ai) the representations and warranties of Purchaser the Corporation in this Agreement shall be 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 in all material respects at the Closingas of such date;
(bii) Purchaser shall the Corporation will have performed complied with all covenants, and complied in satisfied all material respects with the terms and conditions conditions, contained in this Agreement, the Subscription Agreements and the Registration Rights Agreement on its part to be performed or complied with or satisfied at or before prior to 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 AgreementTime;
(ciii) during no order, ruling or determination having the Interim Periodeffect of suspending the sale or ceasing the trading in 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 been no Order made or any Legal Proceedings commenced or threatened received all necessary approvals and consents, including all necessary regulatory approvals and consents required 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, all in a form satisfactory to Vendor and the CompanyAgent;
(fvi) the conditions in Section 4.2 notification of the Option Agreement 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 satisfiedmade to the Nasdaq, without objection by the Nasdaq;
(gvii) Purchaser the Agent shall have obtained all necessary corporate authorization received the opinions, certificates 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.
(hdocuments set forth in Section 4(a) Purchaser shall have made a cash payment to Vendor, by certified cheque, in an amount equal be delivered to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the ExpensesAgent;
(iviii) Purchaserthe Agent shall, in its sole discretion, acting reasonably, be satisfied with its due diligence review and investigations with respect to the Company business, assets, financial condition, affairs and Altius shall prospects of the Corporation;
(ix) the Corporation will have entered into the Assignment Agreement Warrant Certificates in a form satisfactory to the Agent, acting reasonably;
(x) the Agent shall have received the certificates evidencing the Preferred Shares comprised in the form set out in Schedule “B” to this AgreementSecurities and the Warrant Certificates; and
(jxi) all regulatory approvals and consents to the transactions contemplated by Agent shall not have previously terminated 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and complied in all material respects accordance 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;
(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 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 approval 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 madehereof.
(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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligation of the Company Share pursuant Underwriters to this Agreement unlesspurchase the Purchased Units shall be subject to the following conditions, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions which are included for the exclusive benefit of Vendorthe Underwriters, any of which may be waived, in whole or in part, by the Underwriters, in their sole discretion, pursuant to Section 18 hereof:
(a) each of the Transaction Agreements shall have been executed and delivered by the parties thereto, all such Transaction Agreements shall be in form and substance satisfactory to the Underwriters, none of such Transaction Agreements shall have been amended, supplemented or modified in any way and no condition or provision in any such Transaction Agreement shall have been waived by any party without the prior written consent of the Underwriters, acting reasonably, and each of the parties thereto shall have performed such of their obligations thereunder which are to be performed or completed at or prior to the Time of Closing to the satisfaction of the Underwriters, acting reasonably;
(b) the Fund shall deliver to the Underwriters, at the Time of Closing, certificates dated the Closing Date addressed to the Underwriters and signed by the President and Chief Executive Officer and the Chief Financial Officer of H▇▇▇▇, on behalf of H▇▇▇▇, as promoter, or such other senior officer(s) of H▇▇▇▇ as may be acceptable to the Underwriters, certifying for and on behalf of the Fund and H▇▇▇▇ and without personal liability, after having made due enquiries, to the effect that:
(i) each of the Fund and H▇▇▇▇ has complied in all material respects with all the covenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of Purchaser in this Agreement shall be the Fund and H▇▇▇▇ contained herein are true and correct in all material respects as at the Time of Closing, with the same force and effect as if made on and as at the Time of Closing after giving effect to the transactions contemplated hereby;
(biii) Purchaser shall receipts have performed been issued by or on behalf of the Securities Commissions in the Qualifying Jurisdictions for the Prospectus and complied in all material respects with no order, ruling or determination having the terms and conditions in this Agreement on its part effect of ceasing the trading or suspending the issuance or sale of the Purchased Units of the Fund to be performed issued and sold by the Fund hereunder has been issued or complied with at or before the Closing made and shall have executed and delivered or caused to no proceedings for such purpose have been executed and delivered instituted or are pending or, to Vendor at the Closing all knowledge of such officers, contemplated or threatened; and
(iv) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the documentsbusiness, payments and certificates affairs, assets, liabilities (contingent or otherwise), capital or prospects of the Fund or any of Sun Gro U.S., Sun Gro Canada or the Fund Subsidiaries or with respect to any of the assets or liabilities or businesses of, or to be acquired or assumed by, the Fund or any of the Fund Subsidiaries (as contemplated in section 5.3 and elsewhere the Prospectus) from that disclosed in this Agreementthe Prospectus;
(c) during the Interim Period, there Underwriters shall have been no Order made received a certificate dated the Closing Date signed by the Chief Executive Officer of H▇▇▇▇ or any Legal Proceedings commenced other senior officer of H▇▇▇▇ as may be acceptable to the Underwriters, on behalf of the Fund and H▇▇▇▇ in form and content satisfactory to the Underwriters, acting reasonably, certifying or threatened for certifying the purposeform of:
(i) the Declaration of Trust;
(ii) the articles of incorporation and by-laws of the Fund Subsidiaries;
(iii) the resolutions of the board of directors of H▇▇▇▇ and the resolutions of the trustees of the Fund relevant to the approval of the Prospectus and the signing and filing thereof, the issue and sale of the Purchased Units to be issued and sold by the Fund and the authorization of this Agreement and the other Transaction Agreements to which they are parties;
(iv) the resolutions of the boards of directors of each of Sun Gro U.S. and the Fund Subsidiaries relating to the authorization of the Transaction Agreements to which each entity is or which could have the effect, of enjoining, preventing or restraining will be a party and the completion of the transactions contemplated by this Agreement or in the Option AgreementProspectus; and
(v) the incumbency and signatures of signing officers of H▇▇▇▇, Sun Gro U.S. and the Fund;
(d) during the Interim Period there Underwriters, acting reasonably, shall not be satisfied that the transactions described in the Prospectus and the Transfer Pricing Study as being transactions that will occur or be completed on or prior to the Closing Date have been any event or change will concurrently be completed and that has had or would the Fund will be reasonably likely deemed to have be a Material Adverse Effect on Purchaser"mutual fund trust" within the meaning of the Income Tax Act from inception upon the filing of an election under subsection 132(6.1) of the Income Tax Act;
(e) Vendor the Underwriters shall have entered into received a consulting agreement between Vendor and Purchasercomfort letter, in a form and substance satisfactory to Vendor the Underwriters, acting reasonably, from the auditors of the Fund and Sun Gro U.S., updating the Companyletter referred to in Section 7(a)(vii) to the Time of Closing, provided that such letters may be based on a review by the auditors having a cut-off date not more than two business days prior to the Closing Date;
(f) the conditions in Section 4.2 of the Option Agreement Fund and H▇▇▇▇ shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approvalcause its counsel, 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 payable to WB▇▇▇▇, G▇ ▇▇▇▇▇▇ Gervais LLP, or Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇ LLP, as applicable to deliver to the Underwriters and their counsel a legal opinion dated and delivered the Closing Date, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, with respect to the matters set out in Schedule "A" hereto, which opinion may be subject to usual and customary qualifications for opinions of the type to be given; provided, however that in connection with such opinions, counsel to the Fund may rely on the opinions of local counsel acceptable to counsel to the Underwriters, acting reasonably, as to the qualification for distribution of the Purchased Units and as to other matters governed by the laws of jurisdictions other than the province(s) in which they are qualified to practise or opinions may be given directly by such local counsel with respect to those items and counsel may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Fund and others;
(g) the Fund and H▇▇▇▇ shall cause its special counsel in the United States, Skadden, Arps, Slate, M▇▇▇▇▇▇ Limited for & F▇▇▇ LLP, to deliver to the preparation of Underwriters and their counsel a technical report on the Property, legal opinion dated and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of delivered the Closing Date, in form and substance satisfactory to the Underwriters and their counsel, acting reasonably, to the effect that no registration of the balance Purchased Units is required under the U.S. Securities Act, provided that, in each case, the sale is made in accordance with Section 14;
(h) the Underwriters shall have received copies of correspondence indicating that the ExpensesFund has obtained all necessary approvals for the Purchased Units issuable by the Fund to be conditionally listed on the TSE, subject only to the standard listing conditions acceptable to the Underwriters, acting reasonably;
(i) PurchaserBankers Trust Company (the "AGENT"), as administrative agent for the Company and Altius lenders under the senior credit facility of H▇▇▇▇, shall have entered into executed and delivered to the Assignment Agreement Fund, full and final settlement and release agreements, in form and substance satisfactory to the form set out in Schedule “B” Underwriters, acting reasonably, releasing and discharging all claims of each such lender and all related indebtedness and security relating to this Agreementany of the assets to be held after the Time of Closing by the Fund or the Fund Subsidiaries; and
(j) all regulatory approvals the Underwriters shall have received from the auditors of the Fund such certificates, opinions or documents, in form and consents substance satisfactory to the transactions contemplated by this Agreement shall have been obtained and be in full force and effectUnderwriters, including: acting reasonably, as to the approval taxation 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 satisfyFund and its subsidiaries, other than as a result of the failure of Vendor to comply with its obligations under this Agreement, then Vendor in 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 noninter-fulfillment of any other condition.
4.3 Purchaser 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 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations company cash flows and warranties of Vendor interest deductibility and the Company in this Agreement shall be true and correct in all material respects at Fund's distributable cash as the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 madeUnderwriters may reasonably request.
(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 Company; 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
Conditions of Closing. 4.1 Vendor The Purchaser’s Conditions.
(1) The Purchaser shall not be obligated obliged to complete the sale Transactions only if each of the Company Share pursuant to this Agreement unless, following conditions precedent has been satisfied in full at or before the Closing, Closing Time (each of the which conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included precedent is acknowledged to be for the exclusive benefit of Vendor:the Purchaser):
(a) all of the representations and warranties of Purchaser each of the Vendors and the Corporation made in this Agreement shall be true and correct in all material respects as at the ClosingClosing Time with the same effect as if made at and as of the Closing Time (except as those representations and warranties may be affected by events or transactions (i) expressly permitted by or resulting from the entering of this Agreement or (ii) approved in writing by the Purchaser);
(b) Purchaser the Vendors shall have complied with or performed and complied in all material respects with all of the terms obligations, covenants and conditions in agreements under this Agreement on its part to be performed or complied with or performed by the Vendors or any of them at or before the Closing and shall have executed and delivered or caused to have been executed and delivered to Vendor at Time, including the Vendors’ Closing all the documents, payments and certificates contemplated deliveries specified in section 5.3 and elsewhere in this AgreementSection 3.2;
(c) during the Interim Period, there all Approvals described in Schedule 4.2(1)(c) shall have been no Order made or any Legal Proceedings commenced or threatened for obtained, in each case in form and substance satisfactory to the purposePurchaser, or which could have the effect, of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement or the Option Agreementacting reasonably;
(d) during Honda, HondaSub and the Interim Period there Purchaser shall not have been any event or change that has had or would be reasonably likely to have entered into a Material Adverse Effect on Purchasertechnology agreement substantially in the form of the draft agreement attached as Schedule 3.2(c) and the Greenfield/Honda Sublicense;
(e) Vendor there shall have entered into 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 consulting agreement between Vendor and Purchaser, in a form satisfactory to Vendor and the CompanyClaim under any Applicable Law;
(f) the conditions in Section 4.2 of the Option Agreement shall following agreements have been satisfiedterminated:
(i) the Enabling License Agreement made as of May 6, 2004 between the Corporation, HondaSub and Honda;
(gii) Purchaser shall have obtained all necessary corporate authorization the IP and regulatory approvalSupport Agreement made as of July 23, including 2004 between the approval Corporation, HondaSub and Honda;
(iii) the Unanimous Shareholders Agreement made as of October 12, 2000 in respect of the TSX Venture Exchangeaffairs of the Corporation, for as amended by Amendment No. 1 thereto made as of July 23, 2004 between 1141258 Ontario Inc., 1249077 Ontario Inc., the issuance of 10,000,000 Purchaser Shares at a price of $0.15 per shareFM Trust, through the Subscription Receipts offering announced by the Company on December 2HondaSub, 2009.
(h) Purchaser shall have made a cash payment to VendorHonda, by certified cheque, in an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇ ▇. ▇▇▇▇, G▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this AgreementCorporation; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(aiv) the representations Amended and warranties of Vendor Restated Development Agreement between the Corporation, HondaSub and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documentsHonda dated July 23, payments and certificates contemplated in section 5.2 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 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 approval 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 made2004.
(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) the Financial Statements have been delivered and the Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including had four Business Days thereafter to consider the approval reconciliation of the TSX Venture ExchangeFinancial Statements with United States generally accepted accounting principles prepared by KPMG, 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, 2009LLP; and
(h) Purchaser, the Company and Altius there shall have entered into been no Material Adverse Change between the Assignment date of this Agreement in and the form set out in Schedule “B” to this AgreementClosing Date.
4.4 (2) If any condition of the conditions in section 4.3 Section 4.1(1) shall not have been be satisfied or fulfilled in full at or before the Closing or if any such condition is or becomes impossible Time to satisfy, other than as a result the satisfaction of the failure of Purchaser to comply with its obligations under this Agreementacting reasonably, then the Purchaser in its sole discretion may, without limiting any rights or remedies available to the Purchaser at law or in equity, either:
(a) terminate this Agreement by notice in writing to Vendor the Vendors, except with respect to the obligations contained in Sections 6.7, 7.1, 7.2, 7.9 and the Company7.10 which shall survive that termination; or
(b) waive compliance with any such condition without prejudice in whole or in part by notice in writing to its right of termination in the event of non-fulfillment Vendors, except that no such waiver shall operate as a waiver of any other condition.
Appears in 1 contract
Sources: Share Purchase Agreement (Clean Energy Fuels Corp.)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligation of the Company Share pursuant Underwriters to this Agreement unless, purchase the Initial Units at or before the Closing, each of Closing Time on the conditions listed below in this section 4.1 has been satisfied, it being understood that Closing Date and to purchase any Additional Units at the said conditions are included for Closing Time on an Option Closing Date shall be subject to the exclusive benefit of Vendorfollowing:
(a) the Underwriters shall have received a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one business day prior to the Closing Date from the Company and MMDC;
(b) the Underwriters shall have received a certificate from the Company, 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, this Agreement, the Warrant Indenture and the certificates representing the Compensation Options, and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters as the Underwriters may reasonably request;
(c) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by the Co-Chief Executive Officer and the Chief Financial Officer of the 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 Purchaser 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 material respects respects) with the same force and effect as if made at and as of the ClosingClosing 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;
(bd) Purchaser the Underwriters shall have performed received satisfactory evidence that all requisite regulatory approvals and complied 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 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 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 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 with in 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 AgreementProspectus;
(cv) during the Interim Period, there shall Initial Shares and Initial Warrants sold pursuant to the Offering have been no Order made 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 Legal Proceedings commenced or threatened for Supplementary Material and the purposefiling thereof with the Securities Commissions;
(xii) the Company has duly authorized, or which could have executed and delivered, this Agreement, the effectWarrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of enjoiningthe Initial Shares and the Initial Warrants comprising the Initial Units, preventing or restraining the completion 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 Option Agreementterms, 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;
(dxiv) during the Interim Period there shall not form and terms of the definitive certificate representing the Common Shares and the Warrants 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 approved 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation directors of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and complied 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 this Agreement on their respective part the Qualifying Jurisdictions and no prospectus or other document is required to be performed filed, no proceeding is required to be taken and no approval, permit or complied with at or before consent of the Closing 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 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 AgreementCompensation Shares;
(cxviii) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for first trade in Warrant Shares underlying the purpose of enjoining, preventing or restraining Warrants and the completion Compensation Shares underlying the Compensation Options is exempt from the prospectus requirements of the transactions contemplated by this Agreement Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or the Option Agreement; and
(d) all regulatory approvals other document is required to be filed, no proceeding is required to be taken and consents to the 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 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 no approval, including the approval permit, consent or authorization 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 regulatory authorities is required to be obtained by the Company on December 2under 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, 2009; and
provided that (hi) Purchasersuch 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 and Altius shall have entered into is a reporting issuer (as defined under Applicable Securities Laws) at 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 time of such condition is or becomes impossible to satisfyfirst trade, 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 Company; 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.and
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated The obligation of the Receiver to complete the sale transactions contemplated by herein, shall be subject to the satisfaction of certain terms and conditions at or prior to the time of the Company Share pursuant to this Agreement unlessClosing (the "Closing Time"), at or before which conditions are for the Closing, each sole benefit of the conditions listed below Receiver and which may be waived by the Receiver in this section 4.1 has been satisfiedits sole and absolute discretion, it being understood that the said conditions are included for the exclusive benefit of Vendorincluding, without limitation, that:
(ai) the The representations and warranties of Purchaser in this Agreement the Purchaser(s) made herein shall be true and correct in all material respects at the ClosingClosing Time with the same force and effect as if made at and as of the Closing Time; the covenants contained herein to 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 any agreement on its part contained herein and the Receiver shall have received certificates confirming the foregoing, signed for and on behalf of the Purchaser(s) by a duly authorized officer(s) thereof;
(bii) Purchaser shall have performed All documents relating to the due authorization 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 herein and all actions and proceedings taken at or prior to the Closing Time in connection with the performance by this Agreement or the Option AgreementPurchaser(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;
(diii) 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 The Receiver shall have entered into a consulting agreement between Vendor received the Approval Order and Purchaser, in a form satisfactory to Vendor and the Company;
(f) the conditions in Section 4.2 an order of the Option Agreement shall have been satisfied;
(g) Purchaser shall have obtained Court vesting all necessary corporate authorization right, title 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, interest in an amount equal and to the fees, expenses Purchased Assets in and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the PropertyPurchaser(the "Vesting Order"), and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory approvals and any consents to the 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 it deems in its sole and absolute discretion mayto be necessary or admissible in connection with this agreement. In the event that any of the foregoing conditions are not satisfied at the Closing Time, without limiting any rights or remedies available to Vendor at law or then the Receiver in equity, either:
(a) its sole and absolute discretion may either terminate this Agreement by notice agreement without any further consequence or obligation to Purchaser; or
(b) the Purchaser(s), or 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor 9.1 Crosshair shall not be obligated to complete the sale of the Company Share Acquisition pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has 9.1 have been satisfied, it being understood that the said conditions are included for the exclusive benefit of VendorCrosshair:
(a) the representations and warranties of Purchaser UUL in this Agreement shall be true and correct in all material respects at the Closing;
(b) Purchaser UUL shall have performed and complied in all material respects with the terms and conditions in of 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 Crosshair at the 50612059.9 Closing all of the documents, payments and certificates documents contemplated in section 5.3 8.2 and elsewhere in this Agreementagreement;
(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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(jf) all regulatory approvals and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including: including the approval of the TSX Venture Exchange or any other stock exchange that the securities of Purchaser the Parties are listed on or to which an application for listing has been madeon.
4.2 9.2 If any condition in Section 4.1 section 9.1 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 Crosshair to comply with its obligations under this Agreement, then Vendor Crosshair may in its sole discretion maydiscretion, without limiting any the rights or remedies available to Vendor Crosshair at law or in equity, either:
(a) terminate this Agreement by notice to PurchaserUUL; 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 9.3 UUL 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 4.3 9.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of PurchaserUUL:
(a) the representations and warranties of Vendor and the Company Crosshair in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company Crosshair shall have performed and complied in all material respects with the terms and conditions in of this Agreement on their respective 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 UUL at the Closing all of the documents, payments and certificates documents contemplated in section 5.2 8.3 and elsewhere in this Agreementagreement;
(c) during UUL’s due diligence review of Crosshair does not demonstrate the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened for the purpose existence of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement a material undisclosed fact regarding Crosshair or the Option Agreement; and
(d) all regulatory approvals material inaccuracy of a representation and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including the approval warranty 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 Crosshair as 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 Company; 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.2;
Appears in 1 contract
Sources: Purchase and Sale Agreement (Crosshair Exploration & Mining Corp)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligations of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfiedparties hereunder are subject to the accuracy of the representations and warranties of the other parties hereto, it being understood that to the said conditions are included for performance by such other parties of their respective obligations hereunder and to the exclusive benefit of Vendorfollowing further conditions:
(a) If requested by the Selling Agent, MLAI shall deliver a certificate to the effect that: (i) the representations and warranties of Purchaser in this Agreement shall be MLAI contained herein are true and correct in all material respects with the same effect as though expressly made at the Closing;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) Purchaser As of the Initial Closing Time, Sidley Austin Brown & Wood LLP, counsel to the Manager, shall have performed deliver ▇▇ ▇▇▇ ▇▇▇ par▇▇▇▇ hereto its opinion, in form and complied in all material respects with substance satisfactory to each of 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;parties hereto.
(c) during the Interim Period, there The parties hereto shall have been no Order made or any Legal Proceedings commenced or threatened for the purposefurnished with such additional information, or which could have the effectopinions, 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 certificates 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 approvaldocuments, 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 supporting documents relating to Vendor, by certified cheque, in an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement parties described in the form set out in Schedule “B” Memorandum and letters of representation signed by such parties with regard to this Agreement; and
(j) all regulatory approvals information relating to them and consents to the 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 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 included in the event of non-fulfillment of any other condition.
4.3 Purchaser 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 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 and elsewhere in this Agreement;
(c) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened Memorandum as they may reasonably require for the purpose of enjoining, preventing or restraining enabling them to pass upon the completion sale of the transactions Units as herein contemplated by this Agreement and related proceedings, in order to evidence the accuracy or completeness of any of the representations or warranties or the Option Agreementfulfillment of any of the conditions herein contained; andand 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.
(d▇) all regulatory approvals and consents to As of each Additional Closing Time, the transactions contemplated by this Agreement parties hereto shall have been obtained furnished with such information, opinions and certified documents as the Manager and the Selling Agent may deem to be in full force and effect, including the approval necessary or appropriate. If any 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 specified in this 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 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement and all obligations hereunder may be canceled by any party hereto by notifying the other parties hereto of such cancellation in writing or by telegram at any time at or before prior to the Initial Closing or if Time, and any such condition is cancellation 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, termination shall be 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 Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment liability of any party to any other conditionparty except as otherwise provided in Section 6.
Appears in 1 contract
Sources: Selling Agreement (ML APM Global Commodity FuturesAccess LLC)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete (1) The completion of the purchase and sale of the Company Share pursuant 1% Holder Shares in connection with the exercise of the 1% Option is subject to this Agreement unlessthe following conditions to be fulfilled or performed, at on or before the Closing1% Option Closing Date, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said which conditions are included for the exclusive benefit of VendorZijin Purchaser and may be waived, in whole or in part, by Zijin Purchaser in its sole discretion:
(a) the representations 1% Holder must represent and warranties 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 good and valid title to the 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 shall be true Agreement, and correct in all material respects at the Closing(B) Liens granted by Zijin Purchaser;
(b) Purchaser shall have performed all filings, notices and complied in all material respects with the terms and conditions in this Agreement on its part Authorizations required to be performed or complied with at or before obtained by the Closing 1% Holder to complete the purchase and shall have executed and delivered or caused to sale of the 1% Holder Shares have been executed and delivered to Vendor at the Closing all the documentsmade, payments and certificates contemplated in section 5.3 and elsewhere in this Agreementgiven or obtained;
(c) during the Interim Period, there shall 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 no Order made made, issued or delivered by any Legal Proceedings commenced Governmental Entity, seeking to enjoin, restrict or threatened for the purpose, prohibit or which could have the effect, of enjoining, preventing restricting or restraining the completion prohibiting, on a temporary or permanent basis any of the transactions contemplated by this Agreement Article 10 or the Option Agreement;
(d) during the Interim Period there shall not have been imposing any event temporary or change that has had permanent terms or would be reasonably likely to have a Material Adverse Effect conditions 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 Article 10.
(2) The completion of the TSX Venture Exchange purchase and sale of the 1% Holder Shares in connection with the exercise of the 1% Option is subject to the following conditions to be fulfilled or any other stock exchange that the securities of Purchaser are listed performed, 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 1% Option Closing or if any such condition is or becomes impossible to satisfyDate, other than as a result of the failure of Vendor to comply with its obligations under this Agreement, then Vendor in 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 transactions 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 said which conditions are included for the exclusive benefit of Purchaserthe 1% Holder and may be waived, in whole or in part, by the 1% Holder in its sole discretion:
(a) the representations completion of the purchase and warranties sale of Vendor the 1% Holder Shares and the Company payment of the 1% Option Purchase Price will not result in this Agreement shall be true and correct in all material respects at the Closingviolation of any Law;
(b) Each the Transfer of the Vendor and the Company shall have performed and complied in all material respects with the terms and conditions in this Agreement on their respective part 1% Holder Shares to Zijin Purchaser must be performed exempt from any prospectus 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;similar requirements of applicable Laws; and
(c) during the Interim Periodall guarantees, there shall have been no Order indemnities, covenants and security made or granted by the 1% Holder to secure any Legal Proceedings commenced Debt, liability or threatened for the purpose of enjoining, preventing or restraining the completion obligation of the transactions contemplated by this Agreement Corporation (i) must be cancelled; or (ii) Zijin Purchaser must have indemnified the Option Agreement; and
(d) 1% Holder against all regulatory approvals and consents Liabilities which may be paid, suffered or incurred with respect to the transactions contemplated by this Agreement shall have been obtained and be in full force and effectsuch guarantees, including the approval of the TSX Venture Exchange indemnities, covenants or any other stock exchange that the securities of any of Purchaser are listed on or to which an application for listing has been madesecurity.
(e3) 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 approvalIf, 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 a condition expressed in this Section, the failure purchase and sale of Purchaser to comply the 1% Holder Shares in connection with its obligations under this Agreementthe exercise of the 1% Option cannot be completed on the 1% Option Closing Date, then Purchaser in its sole discretion may, without limiting any rights or remedies available to Purchaser at law or in equity, either:
the purchase and sale of the 1% Holder Shares shall be completed on the second (a2nd) terminate this Agreement by notice to Vendor and Business Day following the Company; or
(b) waive compliance with any such date that the condition without prejudice to its right of termination in the event of non-fulfillment of any other conditionis subsequently satisfied.
Appears in 1 contract
Sources: Shareholder Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligations of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfiedparties hereunder are subject to the accuracy of the representations and warranties of the other parties hereto, it being understood that to the said conditions are included for performance by such other parties of their respective obligations hereunder and to the exclusive benefit of Vendorfollowing further conditions:
(a) If requested by the Selling Agent, MLAI shall deliver a certificate to the effect that: (i) the representations and warranties of Purchaser in this Agreement shall be MLAI contained herein are true and correct in all material respects with the same effect as though expressly made at the Closing;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) Purchaser As of the Initial Closing Time, Sidley Austin Brown & Wood LLP, counsel to the Manager, shall have performed deliv▇▇ ▇▇ ▇▇▇ ▇▇e p▇▇▇▇es hereto its opinion, in form and complied in all material respects with substance satisfactory to each of 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;parties hereto.
(c) during the Interim Period, there The parties hereto shall have been no Order made or any Legal Proceedings commenced or threatened 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, or which could have purpose of enabling them to pass upon the effect, of enjoining, preventing or restraining the completion sale of the transactions Units as herein contemplated by this Agreement and related proceedings, in order to evidence the accuracy or completeness of any of the representations or warranties or the Option Agreement;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.
(d) during As of each Additional Closing Time, 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 parties hereto shall have been satisfied;
(g) Purchaser shall have obtained all furnished with such information, opinions and certified documents as the Manager and the Selling Agent may deem to be 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 appropriate. 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 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 transactions contemplated by this Agreement unless, at or before the Closing, each of the conditions listed below specified in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement and all obligations hereunder may be canceled by any party hereto by notifying the other parties hereto of such cancellation in writing or by telegram at any time at or before prior to the Initial Closing or if Time, and any such condition is cancellation 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, termination shall be 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 Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment liability of any party to any other conditionparty except as otherwise provided in Section 6.
Appears in 1 contract
Sources: Selling Agreement (ML Cornerstone FuturesAccess LLC)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale of the Company Share pursuant to 14.1 The Agents’ obligations under this Agreement unless, at shall be subject to the following conditions being fulfilled on or before prior to the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of VendorClosing Date:
(a) the representations Agents shall have received a legal opinion dated as of the Closing Date addressed to the Agents from the Corporation's counsel (who may rely upon the opinions of local counsel) in form and warranties content to the satisfaction of Purchaser in the Agents’ counsel with respect to all such matters as the Agents may reasonably request, including, without limitation, the following:
(i) each of the Corporation and the Material Subsidiaries has been duly created, incorporated, amalgamated or continued, as the case may be, and is existing and has all requisite power and authority to carry on its respective business as now conducted by it and to own or lease its properties and assets as now conducted, and to execute, deliver and, with respect to the Corporation, to perform its obligations under this Agreement shall be true and correct in all material respects at the ClosingAgreement;
(bii) Purchaser shall all necessary actions have performed been taken by the Corporation to validly create, issue, sell and complied deliver the Units, the Common Shares and the Warrants to the Purchasers and the Compensation Warrants to the Agents;
(iii) the Corporation has duly reserved and allotted for issuance the Common Shares, the Warrants, the Compensation Warrants, and the Underlying Shares issuable by it;
(iv) the attributes of the Units and Agents’ Warrants are consistent in all material respects with the terms description thereof contained under the heading “Description of Securities Distributed” in the Final Prospectus;
(v) each of this Agreement, the Warrants and conditions in this Agreement on its part to be performed or complied with at or before the Closing and shall have Compensation Warrants has been duly authorized, executed and delivered or caused to have been executed on behalf of the Corporation and delivered to Vendor at is a legal, valid and binding obligation of the Closing all Corporation enforceable against the documents, payments and certificates contemplated Corporation in section 5.3 and elsewhere in this Agreementaccordance with its terms;
(cvi) during the Interim Periodoffering, there shall have been no Order made or any Legal Proceedings commenced or threatened for issue and sale by the purpose, or which could have the effect, of enjoining, preventing or restraining the completion Corporation 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, Units 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and complied in all material respects accordance with the terms and conditions in of this Agreement on their respective part to be performed and the issuance and delivery of the Underlying Shares issuable upon exercise of the Warrants and the Compensation Warrants, as the case may be, and the performance of and compliance by the Corporation with the terms of this Agreement does not and will not conflict with or complied with at result in a breach of, 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 constitute a default under any applicable laws in section 5.2 and elsewhere in this Agreement;
(c) during the Interim Period, there shall have been no Order made British Columbia or any Legal Proceedings commenced laws of Canada applicable therein or threatened for the purpose of enjoining, preventing any term or restraining the completion provision of the transactions contemplated by this Agreement articles, by-laws or resolutions of the directors or shareholders of the Corporation, or any judgement, decree, order, statute, rule or regulation applicable to the Corporation 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 approval of the TSX Venture Exchange Material Subsidiaries which default 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 breach could have a Material Adverse Effect on the CompanyCorporation;
(vii) the authorized capital of the Corporation only consists of an unlimited number of Common Shares;
(viii) the Corporation is the owner of all of the issued and outstanding securities of the Material Subsidiaries;
(ix) the Common Shares, the Warrants and the Compensation Warrants have been validly created and issued by the Corporation and, upon the Corporation receiving payment of the purchase price for the Units, the Common Shares, the Warrants and the Compensation Warrants, as the case may be, will be validly issued and outstanding as fully paid and non- assessable securities of the Corporation;
(x) the Underlying Shares have been validly created by the Corporation and, upon the exercise of the Warrants and the Compensation Warrants, as applicable, in accordance with their terms, the Underlying Shares so issuable will be validly issued and outstanding as fully paid and non- assessable Common Shares of the Corporation;
(xi) the issuance of the Units, and the Common Shares and the Warrants issuable upon the exercise of the Units, and the Compensation Warrants and the Underlying Shares issuable upon the exercise of the Warrants and the Compensation Warrants have been accepted by the TSXV and the Common Shares and the Underlying Shares have been accepted for listing on the TSXV (subject to the Standard Listing Conditions);
(xii) the Units, consisting of the Common Shares and the Warrants, and the Underlying Shares on the date of issue, will be qualified investments under the Income Tax Act (Canada) (the "Tax Act") and the Income Tax Regulations for trusts governed by a registered retirement savings plan, registered retirement income fund, deferred profit sharing plan and registered education savings plan and will not be a prohibited investment for a registered pension plan under the Tax Act and the Income Tax Regulations. The Units, consisting of the Common Shares and the Warrants, and the Underlying Shares will not, on the date of issue, constitute "foreign property" for the purposes of Part XI of the Tax Act;
(xiii) the Corporation is a "reporting issuer" under Securities Act (British Columbia) and is not included in a list of defaulting reporting issuers maintained by the British Columbia Securities Commission. The Corporation is also a "reporting issuer" or the equivalent under the Securities Laws of each of the provinces of British Columbia, Alberta and on Closing, in Ontario and is not included on a list of defaulting reporting issuers (or equivalent) maintained pursuant to such legislation;
(xiv) the Transfer Agents, at its principal office in Vancouver, has been duly appointed as the transfer agent and registrar for the Common Shares;
(xv) that no prospectus, offering memorandum or other document is required under the securities laws of the Qualifying Jurisdictions, and except as have been obtained or completed, no proceeding is required to be taken and no approval, consent or authorization of or filing with the TSXV or any securities regulatory authority in the Qualifying Jurisdictions is required in order to permit the issuance of the Underlying Shares upon the exercise of the Warrants or the Compensation Warrants, as the case may be; and
(xvi) that no prospectus, offering memorandum or other document is required to be filed, no proceeding required to be taken and no approval, permit, consent or authorization is required to be obtained under the securities laws of the Qualifying Jurisdictions in connection with the first trade of the Underlying Shares in the Qualifying Jurisdictions through brokers or dealers properly registered under such securities laws, provided that:
A. a receipt was obtained for a prospectus qualifying the distribution of the Warrants and the Compensation Warrants;
B. the trade is not a “control distribution” as defined in NI 45-102; and
C. the Corporation is a reporting issuer at the time of the trade.
(b) the Agents will have received certificates dated as at the Closing Date signed by those senior officers of the Corporation as may be acceptable to the Agents, acting reasonably, in form and content satisfactory to the Agents, acting reasonably, with respect to all such matters as the Agents may reasonably request, including the following:
(i) the constating documents of the Corporation;
(ii) the resolutions of the directors of the Corporation relevant to the allotment, issue and sale of the Units, the Compensation Warrants and the Underlying Shares, as applicable, and the authorization of the other agreements and transactions contemplated by this Agreement;
(iii) the incumbency and signatures of signing officers of the Corporation; and
(iv) without bringing forward any date expressly referenced in a specific representation, the representations and warranties of the Corporation 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;
(c) all actions required to be taken by or on behalf of the Corporation and all requisite filings with governmental authorities, Securities Commissions or courts will have occurred at or prior to the Closing Time so as to validly create and issue the Units and the Compensation Warrants;
(d) the issuance of the Units and Compensation Warrants will have been accepted by the TSXV and the Common Shares and the Underlying Shares will have been approved for listing and posting for trading on the TSXV (subject only to Standard Listing Conditions);
(e) the Agents will have received such other certificates (including bringdown certificates), opinions, agreements, materials or documents, in form and substance satisfactory to the Agents, as the Agents may reasonably request;
(f) the Corporation having complied with all covenants contained herein and satisfied all terms and conditions in Section 4.2 contained herein to be complied with and satisfied by it at or prior to the completion of the Option Agreement shall have been satisfied;Offering; and
(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 diligence conducted 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 Agents shall not have been fulfilled at revealed any adverse material change or before the Closing or if any such condition is or becomes impossible to satisfy, other than as a result material fact in respect of the failure of Purchaser Corporation or the Material Subsidiaries not generally known 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 Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other conditionpublic which should have been previously disclosed.
Appears in 1 contract
Conditions of Closing. 4.1 Vendor shall not be obligated to complete The Purchaser has entered into this Bond Purchase Agreement in reliance upon the sale representations and warranties of the Company Share pursuant 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 unless, to purchase and pay for the Bond shall be subject to the performance by the Town and the LGC of their respective obligations to be performed hereunder and under such documents and instruments at or before the prior to Closing, each of and shall also be subject to the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing conditions:
(a) At the time of Closing (i) the representations and warranties of Purchaser in the Town and the LGC, respectively, contained herein shall be true, complete and correct, (ii) the Order, the Trust Agreement, the Second Supplemental Agreement and this Bond Purchase Agreement shall be true in full force and correct in all material respects at the Closing;
(b) Purchaser shall have performed effect 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 amended, modified or change that has had or would be reasonably likely supplemented except as may have been agreed to have a Material Adverse Effect on Purchaser;
by the Purchaser and (eiii) Vendor the Town and the LGC shall have entered into a consulting agreement between Vendor duly adopted and Purchaser, there shall be in a form satisfactory to Vendor full force and effect such resolutions as in the Company;
(f) the conditions in Section 4.2 opinion 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and MBond ▇▇▇▇▇▇▇▇▇ Limited for (US) LLP, Raleigh, North Carolina (“Bond Counsel”), shall be necessary in connection with the preparation of a technical report on the Propertytransactions 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 made arrangements for received the repayment following documents in form and substance reasonably satisfactory to Vendorthe Purchaser:
(1) opinion of Bond Counsel, within 120 days dated as of the Closing Datedate of Closing, of addressed to the balance of Purchaser or together with a reliance letter to the ExpensesPurchaser, in form and substance satisfactory to the Purchaser;
(i2) 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 Company Second Supplemental Agreement and Altius shall 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 entered into been paid;
(8) such other documents as may be required to be delivered pursuant to Section 208 of the Assignment Trust Agreement in or Section 204 of the form set out in Schedule “B” to this Second Supplemental Agreement; and
(j9) all regulatory approvals such additional certificates (including appropriate incumbency and consents to no-litigation certificates), instruments, opinions or other documents as the transactions contemplated by Purchaser may reasonably request. All representations and warranties of the Town and the LGC set forth in this Bond Purchase Agreement shall have been obtained remain operative and be in full force and effect, including: the approval effect regardless of (i) any investigation made by or on behalf of the TSX Venture Exchange Purchaser or any other stock exchange that person controlling the securities Purchaser and (ii) acceptance 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 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 transactions 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 said conditions are included and payment for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 madeBond.
(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 Company; 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: Bond Purchase Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligation of the Company Share pursuant Underwriters to this Agreement unless, purchase the Initial Units at or before the Closing, each of Closing Time on the conditions listed below in this section 4.1 has been satisfied, it being understood that Closing Date and to purchase any Additional Units at the said conditions are included for Closing Time on an Option Closing Date shall be subject to the exclusive benefit of Vendorfollowing:
(a) the Underwriters shall have received a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one business day prior to the Closing Date from the Company and MMDC;
(b) the Underwriters shall have received a certificate from the Company, 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, this Agreement, the Warrant Indenture and the certificates representing the Compensation Options, and the transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters as the Underwriters may reasonably request;
(c) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by the Co-Chief Executive Officer and the Chief Financial Officer of the 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 Purchaser 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 material respects respects) with the same force and effect as if made at and as of the ClosingClosing 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;
(bd) Purchaser the Underwriters shall have performed received satisfactory evidence that all requisite regulatory approvals and complied 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 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 with in 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 AgreementProspectus;
(cv) during the Interim Period, there shall Initial Shares and Initial Warrants sold pursuant to the Offering have been no Order made 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 Legal Proceedings commenced or threatened for Supplementary Material and the purposefiling thereof with the Securities Commissions;
(xii) the Company has duly authorized, or which could have executed and delivered, this Agreement, the effectWarrant Indenture and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of enjoiningthe Initial Shares and the Initial Warrants comprising the Initial Units, preventing or restraining the completion 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 Option Agreementterms, 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;
(dxiv) during the Interim Period there shall not form and terms of the definitive certificate representing the Common Shares and the Warrants have been any event or change that has had or would be reasonably likely to have a Material Adverse Effect on Purchaserapproved 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;
(exv) Vendor shall 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 entered into a consulting agreement between Vendor been filed, all requisite proceedings have been taken, all approvals, permits and Purchaserconsents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in a form satisfactory order to Vendor 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 conditions in Section 4.2 of the Option Agreement Underwriters shall have been satisfiedreceived 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) Purchaser the Underwriters shall have obtained all necessary corporate authorization and received a regulatory approval, including opinion from 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 Company’s regulatory counsel that the Company on December 2and MMDC is in compliance with applicable State cannabis laws addressed to the Underwriters, 2009.such opinion to be in form and substance, acceptable to the Underwriters and their legal counsel, acting reasonably;
(h) Purchaser shall have made if any Initial Units or Additional Units are sold to purchasers in the United States, the Underwriters will receive, at the Closing Time, a cash payment to Vendor, by certified cheque, in an amount equal favourable legal opinion dated the Closing Date from United States securities counsel to the feesCompany, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days effect that no registration of the Closing DateInitial Units and Additional Units offered and sold to purchasers in the United States will be required under the U.S. Securities Act, of such opinion to be in form and substance, acceptable to the balance of the ExpensesUnderwriters;
(i) Purchaser, the Company shall cause its auditors to deliver to the Underwriters a “bring down” comfort letter, addressed to the Underwriters and Altius shall have entered into the Assignment Agreement board of directors of the Company, dated 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 form set out comfort letters referred to in Schedule “B” to this Agreement; andSection 5(a)(iii) hereof;
(j) all regulatory approvals and consents to the transactions contemplated by this Agreement Underwriters 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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.received sati
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated The Closing is subject to complete the sale satisfaction of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the following conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorprecedent:
(a) The Agent shall have received the following, each dated as of the Closing Date (unless otherwise specified) and, except for the 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 Lenders and addressing such other matters as the Agent or any Lender may reasonably request.
(b) The Agent shall have received a certificate, signed by the president, the chief executive officer or the chief financial officer of each of the Borrowers, in form and substance satisfactory to the Agent, certifying that (i) all representations and warranties of Purchaser the Borrowers contained in this Agreement shall be and the other Credit Documents that are not qualified as to materiality are true and correct in all material respects at respects, and all representations and warranties of the Closing;
(b) Purchaser shall have performed and complied in all material respects with the terms and conditions Borrowers contained in this Agreement on its part and the other Credit Documents that are qualified as to be performed or complied with at or before materiality are true and correct, in each case as of the Closing Date, both immediately before and shall have executed after giving effect to the consummation of the transactions contemplated hereby, (ii) no Default or Event of Default has occurred and delivered 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 caused 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 executed and delivered to Vendor at the Closing all the documents, payments and certificates contemplated in section 5.3 and elsewhere in this Agreement;satisfied or waived as required hereunder.
(c) during The Agent shall have received a certificate of the Interim Periodsecretary or an assistant secretary of each Borrower Affiliate, there in form and substance satisfactory to the Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of such Borrower Affiliate, certified as of a recent date by the Secretary of State (or 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 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 other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained, without the imposition of conditions that are not acceptable to the Agent, 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 Order made 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) against or affecting any Borrower Affiliate or any Legal Proceedings commenced of their respective properties or threatened for (ii) with respect to this Agreement or any of the purposeother Credit Documents.
(f) Since December 31, or which could have 1996, both immediately before and after giving effect to the effect, of enjoining, preventing or restraining the completion consummation of the transactions contemplated by this Agreement or the Option Agreement;
(d) during the Interim Period , there shall not have been occurred any event Material Adverse Change or change any event, condition or state of facts that has had or would could reasonably be reasonably likely expected to have result in 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;Change.
(g) Purchaser The Borrowers shall have obtained paid all necessary corporate authorization fees and regulatory approval, including the approval expenses of the TSX Venture Exchange, for Agent and the issuance Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including fees and expenses of 10,000,000 Purchaser Shares at a price of $0.15 per share, through counsel) in connection with this Agreement and the Subscription Receipts offering announced by the Company on December 2, 2009transactions contemplated hereby.
(h) Purchaser The Agent shall have made received a cash payment to Vendor, by certified chequeFinancial Condition Certificate, in an amount equal form and substance satisfactory to the fees, expenses Agent.
(i) The Agent shall have received written confirmation from the applicable lenders under the PNC Indebtedness and taxes paid or payable to Wthe ▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for Indebtedness to the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
effect that (i) Purchaserall principal, interest and other amounts outstanding with respect to the Company PNC Indebtedness and Altius shall the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Indebtedness, as the case may be, have entered into been repaid and satisfied in full, (ii) all commitments to extend credit under the Assignment Agreement in agreements and instruments relating thereto have been terminated, (iii) any Liens securing any PNC Indebtedness or any ▇▇▇▇▇▇▇ ▇▇▇▇▇ Indebtedness, as the form set out in Schedule “B” case may be, have been released and any related filings have been terminated of record (or arrangements satisfactory to this Agreement; andthe 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) all regulatory approvals 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 consents to each Lender shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated by this Agreement hereby as it shall have reasonably requested.
(l) The Agent shall have completed its due diligence review of the Borrowers and 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and complied in all material respects satisfied 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;
(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 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 approval 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 maderesults thereof.
(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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale 11.1 The obligations of the Company Share pursuant to this Agreement unless, at or before Underwriters on the Closing, each of Closing Day will be conditional upon the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing:
(a) on the representations Closing Day, the Issuer will have delivered to the Underwriters, their solicitors and warranties the Substituted Purchasers a favourable opinion of Purchaser the Issuer’s solicitor dated as of the date of the Closing Day, in this Agreement shall 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 Issuer’s solicitor may engage one or more legal counsel in the Selling Provinces or elsewhere to provide such local counsel opinions as may be true and correct in all material respects at the Closingnecessary;
(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 Day, the Issuer will have executed and delivered or caused to have been executed and delivered to Vendor at the Closing all Underwriters, their solicitors and the documents, payments Substituted Purchasers such certificates of its officers and certificates contemplated in section 5.3 and elsewhere in this Agreementother documents relating to the Private Placement or the affairs of the Issuer as the Underwriters or their solicitors may reasonably request;
(c) during the Interim PeriodUnderwriters are satisfied, there shall have been no Order made or any Legal Proceedings commenced or threatened for in their sole discretion, acting reasonably, with the purposeresults of their due diligence review, or which could have the effectincluding, but not limited to, a review of enjoining, preventing or restraining the completion of the transactions contemplated by this Agreement or the Option Agreementall relevant corporate information and property title;
(d) during each representation and warranty of the Interim Period there shall not have been any event or change that has had or would Issuer which is contained in this Agreement continues to be reasonably likely to have a Material Adverse Effect on Purchaser;
(e) Vendor shall have entered into a consulting agreement between Vendor and Purchasertrue, in a form satisfactory to Vendor and the Company;
(f) the conditions in Section 4.2 Issuer has performed or complied with all of the Option Agreement shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization its covenants, agreements 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to obligations under this Agreement; and
(je) all regulatory approvals 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 consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including: the approval obligations of the TSX Venture Exchange or any other stock exchange that Issuer and the securities of Purchaser are listed on or Underwriters 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 complete the Closing or if any such condition is or becomes impossible to satisfy, other than as a result issue and sale of the failure of Vendor to comply with its obligations under this Agreement, then Vendor in its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, eitherFT Shares are subject to:
(a) terminate this Agreement by notice to Purchaserreceipt of all required regulatory approval for or acceptance of the Private Placement; orand
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment removal or partial revocation of any other condition.
4.3 Purchaser shall not be obligated cease trading order or trading suspension made by any competent authority to the extent necessary to complete the transactions contemplated by this Agreement unless, at or before the Closing, each issuance of the conditions listed below in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor FT Shares and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 madePrivate Placement.
(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 Company; 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: Underwriting Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligations of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfiedparties hereunder are subject to the accuracy of the representations and warranties of the other parties hereto, it being understood that to the said conditions are included for performance by such other parties of their respective obligations hereunder and to the exclusive benefit of Vendorfollowing further conditions:
(a) If requested by the Selling Agent, MLAI shall deliver a certificate to the effect that: (i) the representations and warranties of Purchaser in this Agreement shall be MLAI contained herein are true and correct in all material respects with the same effect as though expressly made at the Closing;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) Purchaser As of the Initial Closing Time, Sidley Austin Brown & Wood LLP, counsel to the Manager, shall have performed deliver ▇▇ ▇▇▇ ▇▇▇ par▇▇▇▇ hereto its opinion, in form and complied in all material respects with substance satisfactory to each of 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;parties hereto.
(c) during the Interim Period, there The parties hereto shall have been no Order made or any Legal Proceedings commenced or threatened 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, or which could have purpose of enabling them to pass upon the effect, of enjoining, preventing or restraining the completion sale of the transactions Units as herein contemplated by this Agreement and related proceedings, in order to evidence the accuracy or completeness of any of the representations or warranties or the Option Agreement;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) during As of each Additional Closing Time, 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 parties hereto shall have been satisfied;
(g) Purchaser shall have obtained all furnished with such information, opinions and certified documents as the Manager and the Selling Agent may deem to be 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 appropriate. 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 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 transactions contemplated by this Agreement unless, at or before the Closing, each of the conditions listed below specified in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement and all obligations hereunder may be canceled by any party hereto by notifying the other parties hereto of such cancellation in writing or by telegram at any time at or before prior to the Initial Closing or if Time, and any such condition is cancellation 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, termination shall be 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 Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment liability of any party to any other conditionparty except as otherwise provided in Section 6.
Appears in 1 contract
Sources: Selling Agreement (ML Chesapeake FuturesAccess LLC)
Conditions of Closing. 4.1 Vendor Buyer's and Seller's obligations to close the Transaction shall not be obligated to complete the sale of the Company Share pursuant to this Agreement unless, at or before the Closing, conditioned upon (each of the conditions listed below may be waived by Buyer in this section 4.1 has been satisfiedwriting only):
7.1 Buyer obtaining the consent of the lessors of the leases assumed by Buyer, it being understood that and the consent of the other parties to any other contracts assumed by Buyer, to the extent said conditions consents are included for required;
7.2 Buyer having obtained, or having obtained the exclusive benefit appropriate consents or approvals to the assignment of, all permits, licenses and contracts necessary to continue the operations of Vendor:the Business;
(a) 7.3 Seller having maintained the representations and warranties Assets in the same condition as of Purchaser in the date of this Agreement shall be true (subject to ordinary wear and correct tear only);
7.4 Seller having conducted the Business diligently and substantially in all the same manner as prior to the execution of this Agreement and not having entered into any contract, commitment or transaction not in the usual and ordinary course of business;
7.5 The operations of the Business not having changed in A material respects at and adverse manner between the date of this Agreement and the date of Closing;
(b) Purchaser shall have performed and complied 7.6 There being no governmental investigations or suits pending or threatened with respect to the operations of the Business, except as may otherwise be agreed to in all material respects writing by Buyer;
7.7 Buyer obtaining adequate financing for this Transaction.
7.8 The Gicks entering into a Consulting Agreement in the
7.9 Buyer obtaining executed Employment Agreements from key employees as determined by Buyer, with the terms and conditions content acceptable to Buyer;
7.10 Buyer and Seller agreeing as to the manner in this Agreement on its part which the purchase price shall be allocated among the various assets transferred pursuant 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;. The parties agree to execute and complete such forms as are required by the Internal Revenue Service to evidence such allocation. At this time it is contemplated that more than one half of the purchase price shall be allocated to Gicks pending patent rights.
(c) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened 7.11 Buyer and Seller executing a Lease 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 payable to WGick ▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement lding in the form set out in Schedule “B” attached as Exhibit "D", at an initial rate of rent of $12,049.50 per month, triple net, subject to this Agreement; and
(j) 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 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 madeannual C.P.I. increases.
4.2 If 7.12 Buyer confirming that Seller did not omit 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 satisfyknown material liabilities from its June 30, other than as a result of the failure of Vendor to comply with its obligations under this Agreement, then Vendor in its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, either:
1997 Balance Sheet (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 conditionExhibit "E").
4.3 Purchaser 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 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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 (Futech Interactive Products Inc)
Conditions of Closing. 4.1 Vendor shall not be obligated The US Agent's obligation to complete the sale of Closing, and the Company Share pursuant Purchasers' obligations to this Agreement unless, purchase the Units at or before the Closing, each shall be subject to the US Agent having received at the Time of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of VendorClosing:
(a) favourable legal opinions, in form and substance satisfactory to the representations US 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 the US Agent and warranties the Purchasers and to the extent appropriate as to matters of Purchaser fact based on certificates of officers of the Corporation to the 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 this Agreement shall 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 true validly issued and, in the case of the shares, as fully paid and correct 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 material respects 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 ClosingShare Purchase Warrants under the Share Purchase Warrant Indenture;
(b) Purchaser shall 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 and other corporate action relating to this Agreement and to the creation, allotment, issue and sale of the Units and specimen signatures of signing officers and with respect to such other matters 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 performed 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 default;
(v) the Corporation has duly complied in all material respects with all of the terms and conditions in of this Agreement on its part to be performed or complied with at or before up to 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 AgreementTime of Closing;
(cvi) during the Interim Period, there shall have been no Order representations and warranties of the Corporation contained in this Agreement are true and correct as of the Closing Date with the same force and effect as if made or any Legal Proceedings commenced or threatened for at and as of the purpose, or which could have the effect, Time of enjoining, preventing or restraining the completion of Closing after giving effect to 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(jvii) all regulatory approvals and consents to such other matters as the 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 Option AgreementUS Agent may reasonably request; 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 approval 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 Company; 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
Conditions of Closing. 4.1 Vendor shall not be obligated The Purchaser's obligations to complete purchase the sale Bonds are subject to fulfillment of the Company Share pursuant to this Agreement unless, following conditions at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:
(a) The representations of the representations Issuer and warranties of Purchaser in this Agreement shall the Tenant hereunder must be true on and correct in all material respects at as of the Issue Date and must be confirmed by certificates dated as of the Closing;
(b) Purchaser shall have performed and complied Neither the Issuer nor the Tenant has defaulted 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 Agreementperformance of any of their respective covenants hereunder;
(c) during The Purchaser must receive at the Interim PeriodClosing:
(i) an opinion of Bond Counsel, there shall have been no Order made or any Legal Proceedings commenced or threatened dated as of the Closing; in form and substance satisfactory to the Purchaser and its counsel;
(ii) an opinion of counsel for the purposeTenant, or which could have the effect, of enjoining, preventing or restraining the completion dated as of the transactions contemplated by 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 Agreement or the Option Bond Purchase Agreement;
(diii) during an opinion of counsel for the Interim Period there shall not have been any event or change that has had or would be reasonably likely Issuer, dated as of the Closing, in form and substance satisfactory to have a Material Adverse Effect on PurchaserBond 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;
(eiv) Vendor shall have entered into a consulting agreement between Vendor certificate or certificates, satisfactory in form and Purchaser, in a form satisfactory substance to Vendor Bond Counsel and the Company;
(f) the conditions in Section 4.2 Purchaser and its counsel, of an authorized official of the Option Agreement shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approval, including Issuer dated 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days date of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 the TSX Venture Exchange or any other stock exchange effect 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 its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, either:
(aA) 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 transactions contemplated by this Agreement unless, at or before the Closing, each of the conditions listed below representations of the Issuer set forth in this section 4.3 has been satisfiedSection 4 hereof is true, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations accurate and warranties of Vendor and the Company in this Agreement shall be true and correct complete in all material respects at as of the Closing;
(b) Each , and each of the Vendor and agreements of the Company shall have performed and complied in all material respects with the terms and conditions Issuer set forth in this Bond Purchase Agreement on their respective part to be performed or complied with at or before prior to the Closing has been complied with; and shall have executed (B) no litigation is pending, or to such official's knowledge, threatened, to restrain or enjoin the issuance or delivery of the Bonds, or contesting or questioning the validity of the Bonds, the 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 delivered or caused to have been executed and delivered to Vendor at the Closing all Trust Estate under the documents, payments and certificates contemplated in section 5.2 and elsewhere in this Agreement;
(c) during the Interim Period, there shall have been no Order made or any Legal Proceedings commenced or threatened Indenture as security for the purpose of enjoining, preventing or restraining the completion payment of the transactions contemplated by this Agreement or the Option Agreement; Bonds, 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 approval 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 Company; 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: Bond Purchase Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the The sale of the Company Share pursuant Units is subject to this Agreement unless, at or before the Closing, each accuracy of the conditions listed below in this section 4.1 has been satisfiedrepresentations and warranties of the parties hereto, it being understood that to the said conditions are included for performance by such parties of their respective obligations hereunder and to the exclusive benefit of Vendorfollowing further conditions:
(a) The Registration Statement shall have become effective and at each Closing Date no order suspending the representations effectiveness thereof shall have been issued under the 1933 Act or proceeding therefor initiated or threatened by the SEC, and warranties the NFA shall have accepted the Prospectus as a Disclosure Document pursuant to CFTC Regulations and NFA Rules without a finding of Purchaser further deficiencies.
(b) At or prior to the Initial Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ counsel to the General Partner, shall deliver its opinion, in this 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 shall 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 true 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 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 Closing;
time the Prospectus and any amendments or supplements thereto were first issued, the Prospectus (b) Purchaser shall have performed 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 conditions the General Partner need not be registered as an "investment adviser" under the Investment Advisers Act of 1940 in this Agreement 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 part 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 performed described in the Registration Statement or complied with at the Prospectus that are not so described; and to such counsel's knowledge no such proceedings are threatened by governmental authorities 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;others.
(c) during At or prior to the Interim PeriodInitial Closing Date, there the Fund 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 received a capital contribution of the transactions contemplated General Partner in the amount required by this its Limited Partnership Agreement or and as described in the Option Agreement;Prospectus.
(d) during At or prior to the Interim Period there Initial Closing Date, executed copies of the Limited Partnership Agreement and this Agreement shall not have been any event or change that has had or would be reasonably likely delivered to have a Material Adverse Effect on Purchaser;the parties hereto.
(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 The parties hereto shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization furnished with such additional information, opinions and regulatory approvaldocuments, including supporting documents relating to parties described in the approval 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 TSX Venture ExchangeUnits as herein contemplated and related proceedings, for in order to evidence the issuance accuracy or completeness of 10,000,000 Purchaser Shares at a price any of $0.15 per share, through the Subscription Receipts offering announced representations or warranties or the fulfillment of any of the conditions herein contained; and all actions taken by the Company on December 2, 2009.
(h) Purchaser parties hereto in connection with the sale of the Units as herein contemplated shall have made a cash payment be reasonably satisfactory in form and substance to Vendor, by certified cheque, in an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇▇ Limited ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the preparation of a technical report on the PropertyGeneral Partner, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 Selling Agent. 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 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 transactions contemplated by this Agreement unless, at or before the Closing, each of the conditions listed below specified in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 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 before the prior to such Closing or if Date, and any such condition is cancellation or becomes impossible termination shall be without liability of any party to satisfy, any other party other than in respect of Units already sold and except as a result otherwise provided in Sections 6 and 8 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 Company; 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: Selling Agreement (Grant Park Futures Fund Limited Partnership)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale 5.1 The obligation of the Company Share pursuant Purchaser to this Agreement unless, at or before purchase the Closing, each of Purchased Securities shall be subject to the following conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorthe Purchaser to be 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 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 securities of the Corporation;
(b) the covenants, representations and warranties of Purchaser the Vendor contained in this Agreement Article 2 hereof shall be true and correct in all material respects at on and as of the Closing;
(b) Purchaser date of the acceptance of this offer by the Vendor and shall have performed also be true and complied in all material respects correct on and as of the Closing Date with the terms same force and conditions in this Agreement effect as though such covenants, representations and warranties had been made 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 Agreementas of such date;
(c) during the Interim Period, there Vendor shall have been no Order made complied with all covenants and agreements herein agreed to be performed 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 caused to be performed by this Agreement or the Option Agreementit;
(d) during except to the Interim Period there extent contemplated by section 5.2 hereof, without the Purchaser's prior written consent, since the date hereof, the Corporation shall not have been taken any event 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 that has had in the assets, liabilities, business, affairs, operations, prospects (financial or would be reasonably likely to have a Material Adverse Effect on Purchaserotherwise) or capital of the Corporation;
(e) Vendor since the date hereof, the Corporation shall not have entered into a consulting agreement between Vendor and Purchaserredeemed, 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 a form satisfactory to Vendor and the Company;respect of its outstanding securities; and
(f) since the conditions in Section 4.2 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 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 foregoing conditions has not been fulfilled and/or performed at or before the Time of Closing or if any such condition is or becomes impossible to satisfy, other than as a result the satisfaction of the failure of Vendor to comply with its obligations under this AgreementPurchaser, then Vendor in its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, either:
(a) terminate this the Purchaser may rescind the Agreement by notice to Purchaserthe Vendor and in such event the Purchaser shall be released from all obligations hereunder; or
(b) waive compliance with provided that any of such condition conditions may be waived in whole or in part by the Purchaser without prejudice to its right rights of termination rescission in the event of the non-fulfillment fulfilment of any other conditioncondition or conditions.
4.3 Purchaser shall not be obligated to complete the transactions contemplated by this Agreement unless, at or before the Closing, each 5.2 The obligation of the conditions listed below in this section 4.3 has been satisfied, it being understood that Purchaser to purchase the said conditions are included Purchased Securities shall be subject to the further condition for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company shall have performed and complied in all material respects with the terms and conditions in this Agreement Purchaser that, on their respective part to be performed or complied with at or before the Closing close of business on December 13, 1996, the 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 Purchased Securities and shall have executed received, in its discretion, all necessary or appropriate orders, rulings and delivered 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 caused 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 have been executed and delivered fulfilled.
5.4 In the event that the condition referred to Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 waived by the 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 condition for the exclusive benefit of the Vendor that, on or before the Closing or if any such condition is or becomes impossible to satisfyclose of business on December 13, other than as a result 1996, that the Vendor's "disinterested directors" shall have approved the terms of the failure Agreement. If the foregoing condition has not been fulfilled, the Agreement shall be rescinded and each of Purchaser to comply with its the parties shall be released from any 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 Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other conditionhereunder.
Appears in 1 contract
Conditions of Closing. 4.1 Vendor The Purchaser shall not be obligated to complete the purchase and sale of the Company Share Royalty Interests pursuant to this Agreement unless, unless at or before the ClosingClosing Date, unless each of the following conditions, which conditions listed below are for the sole benefit of the Purchaser and may be waived in this section 4.1 whole or in part by the Purchaser, has been satisfied, it being understood that and the said Seller agrees with the Purchaser to take all such actions, steps and proceedings as necessary to ensure the following conditions are included for fulfilled at or before the exclusive benefit of VendorClosing Date:
(a) the representations and warranties of Purchaser the Seller and the Shareholder contained in this Agreement section 6 shall be true and correct in all material respects at the Closing;
(b) Purchaser each of the Seller and the Shareholder shall have performed and complied in with all material respects with of 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 the Purchaser at the Closing all the documents, payments and certificates documents contemplated in section 5.3 and elsewhere this Agreement, tendered in accordance with this Agreement;
(c) during the Interim Period, there shall have been be no Order made litigation 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;proceedings:
(i) Purchaser, pending against the Company and Altius shall have entered into Seller or the Assignment Agreement in Shareholder or involving the form set out in Schedule “B” to this Agreement; and
(j) 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 assets or properties of the TSX Venture Exchange Seller 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 satisfyShareholder, other than as a result of the failure of Vendor to comply with its obligations under this Agreement, then Vendor in 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 or the Option Agreementinadvisable; and
(d) all regulatory approvals each of the Seller and consents the Shareholder shall have delivered to the transactions contemplated by this Agreement shall have been obtained Purchaser an executed release in the form attached as Schedule “A” which:
(i) fully discharges and be in full force releases the Purchaser from any obligations under the Royalty Agreement; and
(ii) fully discharges and effect, including releases any Lien arising under the approval 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.Royalty Agreement;
(e) during the Interim Period there Seller shall not have been any event or change that has had or would be reasonably likely delivered to have the Purchaser a Material Adverse Effect certificate of the President of the Seller attaching:
(i) a copy of resolutions of the Board of the Seller approving the purchase and 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 CompanySeller in accordance with the constating documents of the Seller;
(f) the conditions in Section 4.2 of the Option Agreement Seller shall have been satisfied;delivered to the Purchaser an executed general conveyance agreement in the form attached as Schedule “B”; and
(g) Purchaser the Seller shall have obtained all necessary corporate authorization and regulatory approval, including delivered to the approval Purchaser an executed copy 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 Company; 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: Royalty Interest Repurchase Agreement (Dynamic Oil & Gas Inc)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligations of the Company Share pursuant parties hereunder shall at all times be subject to this Agreement unless, at or before the Closing, each continued accuracy of all representations and warranties of the conditions listed below in this section 4.1 has parties contained herein as though such representations and warranties had been satisfiedmade at and as of such times, it being understood that and the said conditions are included for the exclusive benefit of Vendorfollowing additional conditions:
(a) The Registration Statement shall have become effective and no stop order suspending the representations effectiveness of the Registration Statement shall have been issued and warranties no proceeding for that purpose shall have been initiated or threatened by the SEC; and all requests for additional information on the part of Purchaser in this Agreement the SEC shall be true and correct in all material respects at the Closinghave been complied with;
(b) Purchaser SSB 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, received an opinion 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 payable to WWill▇▇▇ ▇▇▇▇ & ▇all▇▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of ted the Closing DateDate (as defined in Paragraph 7 below), of in form and substance satisfactory to it, to the balance of the Expenses;effect that:
(i) Purchaser, The Partnership has been duly formed and is validly existing as a limited partnership under the Company Partnership Law with full partnership power and Altius shall have entered into authority to carry out its obligations under this Agreement and the Assignment Agreement 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 form Partnership which conform to the description thereof contained in the Prospectus; and the liability of each limited partner will be limited as set out forth in Schedule “B” 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
(jv) all regulatory approvals and consents The Registration Statement has become effective under the Act, and, to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including: the approval best of the TSX Venture Exchange or any other stock exchange that knowledge of such counsel, no stop order suspending the securities effectiveness of Purchaser are listed on or to which an application for listing the Registration Statement has been made.
4.2 If issued nor has 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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, proceeding 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 Agreementsuch an order been initiated or threatened.
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 Company; 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: Selling Agreement (Salomon Smith Barney Diversified 2000 Futures Fund Lp)
Conditions of Closing. 4.1 Vendor The Buyer shall not be obligated have no obligation to complete close the sale purchase of the Company Share pursuant to Property and may terminate this Agreement unless, at or before and have the Closing, each ▇▇▇▇▇▇▇ Money paid to it unless the following conditions (“Closing Conditions”) are met as of the conditions listed below time of Closing or the Buyer, in this section 4.1 has been satisfiedits discretion, it being understood that the said conditions are included for the exclusive benefit shall have waived any of Vendorsuch 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 of Purchaser in this Agreement herein 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 There shall not have been instituted and be pending 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
litigation: (i) Purchaseralleging that the Property may not be used for office, the Company warehouse and Altius shall have entered into the Assignment Agreement 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 form set out physical condition of the Improvements; (iii) that would impair Seller’s right to sell the Property in Schedule “B” to accordance with the terms of this Agreement; and
or (jiv) all regulatory approvals and consents to that would, if successful, impose a lien or other encumbrance on the transactions contemplated Property which cannot be or is not removed by this Agreement shall have been obtained and be in full force and effectSeller by payment, including: the approval of the TSX Venture Exchange bonding 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 otherwise as set forth 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 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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 made4(c).
(e) during the Interim Period there There shall not have been any event be no outstanding notices of a material violation with respect to Seller’s operation 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 ownership 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 AgreementProperty thereof from any governmental authority.
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 Company; 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 Agreement (Northern Technologies International Corp)
Conditions of Closing. 4.1 Vendor a) The obligation of AAI to close hereunder shall not be obligated subject to complete the sale of the Company Share pursuant fulfillment and satisfaction, prior to this Agreement unless, or at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfiedfollowing conditions, it being understood that or the said conditions are included for the exclusive benefit of Vendorwritten waiver thereof by AAI:
(ai) the The certificates, representations and warranties of Purchaser Castle in this Agreement shall be true and correct in all material respects on and as of the Closing Date.
ii) Each of the agreements of Castle to be performed under this Agreement at or prior to the Closing;Closing Date shall have been duly performed in all material respects.
iii) AAI shall have received, fully executed and, where appropriate, in recordable form, all without recourse, except as expressly provided for elsewhere herein, the following:
(a) Non-Recourse Assignment of Loan Purchase Agreement (attached as Exhibit "B-1").
(b) Purchaser shall have performed Assignment of Obligations 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;Mortgage (attached hereto as Exhibit "B-2").
(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;Sale (attached hereto as Exhibit "B-3").
(d) during UCC-3 Assignment of Financing Statements for filing with 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;Secretary of State of Alabama and Judge of Probate, Mobile County, Alabama (attached hereto as Exhibit "B-4").
(e) Vendor Assignment of Petroleum Purchase Note (attached hereto as Exhibit "B-5").
iv) AAI shall have entered into received a consulting agreement between Vendor fully executed Mutual Release, substantially in the form of Exhibit "C", attached hereto 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 Vendorpart hereof, by certified cheque, in an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days effective as of the Closing Date, upon the surrender of the balance Release referred to in Paragraph 6 hereof.
b) The obligation of the Expenses;
(i) Purchaser, the Company and Altius Castle to close hereunder shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory approvals and consents be subject to the transactions contemplated by this Agreement shall have been obtained fulfillment and be in full force and effectsatisfaction, including: the approval of the TSX Venture Exchange prior to 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 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 transactions contemplated by this Agreement unless, at or before the Closing, each of the following conditions listed below in this section 4.3 has been satisfied, it being understood that or the said conditions are included for the exclusive benefit of Purchaser:
(awritten waiver thereof by Castle: i) the The representations and warranties of Vendor and the Company AAI in this Agreement shall be true and correct in all material respects on and as of the Closing Date.
ii) Each of the agreements of AAI to be performed under this Agreement at or prior to the Closing;Closing Date shall have been duly performed in all material respects.
iii) Castle shall have received the full amount of the Purchase Price as provided in Paragraph 2 hereof.
iv) Castle shall have received, fully executed and, where appropriate, in recordable form, the following:
(a) Non-Recourse Assignment of Loan Purchase Agreement (attached as Exhibit "B-1").
(b) Each Assignment of the Vendor Obligations and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 and elsewhere in this Agreement;Mortgage (attached hereto as Exhibit "B-2").
(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 Option Agreement; andSale (attached hereto as Exhibit "B-3").
(d) all regulatory approvals UCC-3 Assignment of Financing Statements for filing with the Secretary of State of Alabama and consents to the transactions contemplated by this Agreement shall have been obtained and be in full force and effectJudge of Probate, including the approval 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 madeMobile County, Alabama (attached hereto as Exhibit "B-4").
(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;Assignment of Petroleum Purchase Note (attached hereto as Exhibit "B-5").
(fv) the conditions in Section 4.2 of the Option Agreement Castle shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization and regulatory approvalreceived a fully executed Mutual Release, 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 substantially 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 of Exhibit "C", attached hereto and made a part hereof, effective as of 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 Company; or
(b) waive compliance with any such condition without prejudice to its right of termination in the event of non-fulfillment of any other conditionDate.
Appears in 1 contract
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale (a) The obligations of the Company Share pursuant to Series A Stockholders set forth in this Agreement unlessare subject to the fulfillment or waiver, at or before the Closing, of each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendorfollowing conditions:
(ai) (A) Ramtron's common stockholders shall have approved Proposals 1A and 1B at a special meeting held on July 20, 1999, in accordance with Ramtron's Notice of Special Meeting dated June 21, 1999; (B) the purchasers (the "DFA Stockholders") of Ramtron's Common Stock pursuant to Stock Purchase Agreements dated as of December 23, 1997 (the "DFA Purchase Agreements"), shall have entered into and closed, or shall enter into and close concurrently with the Closing of this Agreement, the DFA Stockholder Recapitalization Agreement with Ramtron providing for, among other matters, the termination of the DFA Purchase Agreements; (C) the holders of a majority of the shares of Series A Stock shall have approved the amendment of Ramtron's Certificate of Incorporation as provided in Section 1(a) and if such approval is by written consent of less than all Series A Stockholders, Ramtron shall have given written notice to each Series A Stockholder who has not so consented; (D) Ramtron's Board of Directors shall have approved and authorized the execution and filing with the Delaware Secretary of State of the Certificate of Amendment; and (E) NEBF and Ramtron shall have amended the Loan Agreement dated August 31, 1995, or shall have prepared and signed a separate document, to provide (among other things) for (I) NEBF's irrevocable consent to the amendment of Ramtron's Certificate of Incorporation as provided in Section 1(a), (II) the extension of the maturity date for the loan to a date not earlier than March 15, 2002, and (III) the release of certain categories of collateral pledged as security for repayment of NEBF's loan to Ramtron upon Ramtron's satisfaction of certain performance milestones.
(ii) Each of the representations and warranties of Purchaser Ramtron contained in this Agreement Section 4 shall be true and correct in all material respects at on and as of the Closing Date with the same effect as though such representations and warranties had been made as of the Closing;.
(biii) Purchaser Ramtron shall have performed and complied in with all material respects with the terms agreements, obligations and conditions contained in this Agreement on its part that are required to be performed or complied with at by it on or before the Closing and shall have executed obtained all approvals, consents and delivered qualifications necessary to completely perform its obligations undertaken herein.
(iv) Ramtron shall have provided to each of the Series A Stockholders or caused their representative a copy, certified by Ramtron's Secretary, of the resolutions of the Board of Directors of Ramtron providing for the authorization and approval of this Agreement and the matters mentioned in Section 3(a)(i)(D).
(v) Ramtron's Common Stock shall be listed on The Nasdaq SmallCap Market ("Nasdaq") and trading in Ramtron's Common Stock shall not have been suspended by Nasdaq, the Securities and Exchange Commission (the "SEC") or other regulatory authority.
(vi) No action, suit, proceeding, inquiry or investigation before or by any court, public board, governmental agency or authority shall be known to Ramtron to have been executed and delivered filed against or affecting Ramtron or Enhanced Memory Systems, Inc.("EMS"), a Delaware corporation wholly owned by Ramtron, which seeks to Vendor at the Closing all the documentsprevent, payments and certificates contemplated in section 5.3 and elsewhere in this Agreement;
(c) during the Interim Periodenjoin, there shall have been no Order made alter or any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of enjoining, preventing or restraining the completion of delay the transactions contemplated by this Agreement or which if decided adversely to Ramtron would affect the Option Agreement;
(d) during validity or enforceability of this Agreement or 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, 2009Series A Stock.
(hvii) Purchaser The Series A Stockholders shall have made a cash payment to Vendor, by certified cheque, in received an amount equal to the fees, expenses and taxes paid or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited opinion of counsel for the preparation of a technical report on the PropertyCompany, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days dated as of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) all regulatory approvals and consents as to the transactions contemplated by this Agreement shall have been obtained matters of Delaware law set forth in Exhibit B, subject to such conditions and be exceptions as are usual 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 madesuch opinions.
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 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 The obligations of termination Ramtron set forth in the event of non-fulfillment of any other condition.
4.3 Purchaser shall not be obligated to complete the transactions contemplated by this Agreement unlessare subject to the fulfillment or waiver, at or before the Closing, of each of the conditions listed below in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaserfollowing conditions:
(ai) (A) Ramtron's common stockholders shall have approved Proposals 1A and 1B at a special meeting held on July 20, 1999, in accordance with Ramtron's Notice of Special Meeting dated June 21, 1999; (B) the DFA Stockholders shall have entered into and closed, or shall enter into and close concurrently with the Closing of this Agreement, the DFA Stockholder Recapitalization Agreement with Ramtron providing for, among other matters, the termination of the DFA Purchase Agreements; (C) the holders of a majority of the shares of Series A Stock shall have approved the amendment of Ramtron's Certificate of Incorporation as provided in Section 1(a); and (D) NEBF and Ramtron shall have amended the Loan Agreement dated August 31, 1995, or shall have prepared and signed a separate document, to provide (among other things) for (I) NEBF's irrevocable consent to the amendment of Ramtron's Certificate of Incorporation as provided in Section 1(a), (II) the extension of the maturity date for the loan to a date not earlier than March 15, 2002, and (III) the release of certain categories of collateral pledged as security for repayment of NEBF's loan to Ramtron upon Ramtron's satisfaction of certain performance milestones.
(ii) All legal actions of any type filed against Ramtron by any of the Series A Stockholders, or their respective transferees, affiliates, associates, stockholders, partners members and other related parties, and all legal actions of any type filed against Ramtron by any of the DFA Stockholders, or their respective affiliates, associates, stockholders, partners, members and other related parties, shall have been dismissed with prejudice or appropriate documents to effect such dismissal shall have been delivered to Ramtron.
(iii) Each of the representations and warranties of Vendor and the Company Series A Stockholders contained in this Agreement Section 5 shall be true and correct in all material respects at on and as of the Closing Date, with the same effect as though such representations and warranties had been made as of the Closing;.
(biv) Each of the Vendor and the Company The Series A Stockholders shall have performed and complied in with all material respects with the terms agreements, obligations and conditions contained in this Agreement on their respective part that are required to be performed or complied with at by the Series A Stockholders on 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;
(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 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 approval 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 approvals, consents and qualifications 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 Agreementcompletely perform their obligations undertaken herein.
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 Company; 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: Preferred Stock Recapitalization Agreement (Ramtron International Corp)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale 5.1 The obligation of the Company Share pursuant Subscriber to this Agreement unlesspurchase the Shares on Closing will be subject to the fulfillment, at on or before the ClosingClosing Date, each of the conditions listed below following conditions, compliance with which may be waived in this section 4.1 has been satisfiedwriting by the Subscriber, in its sole discretion, before Closing and upon such terms as it being understood that the said conditions are included for the exclusive benefit of Vendormay consider appropriate:
(a) the representations and warranties of Purchaser in this Agreement shall be the Issuer contained herein being true and correct in all material respects at and as of the ClosingClosing Date as though such representations had been made as of and on the Closing Date;
(b) Purchaser shall have the Issuer has complied with and performed and complied in all material respects with of the terms covenants, agreements and conditions in this Agreement on its part required hereby to be performed completed on or complied with at or before the Closing and shall have executed and delivered or caused prior 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;Closing; and
(c) during the Interim Periodno order, there shall have been no Order made judgment, injunction, decree, award or writ of any court, tribunal, arbitrator, governmental agency or any Legal Proceedings commenced other person has been entered which prohibits or threatened for restricts the purpose, Closing or which could have the effect, of enjoining, preventing or restraining the completion issuance of the transactions contemplated by this Agreement or the Option Agreement;Shares in connection therewith; and
(d) during Subscriber has received 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;documents specified in subsection 7.3.
(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 5.2 The obligation of the Option Agreement shall have been satisfied;
(g) Purchaser shall have obtained all necessary corporate authorization Issuer to complete the subscription hereby contemplated and regulatory approval, including to issue 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 Closing will be subject to the feesfulfillment, expenses and taxes paid on or payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of before the Closing Date, of the balance of following conditions, compliance with which may be waived in writing by the Expenses;
(i) PurchaserIssuer, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 its sole discretion maydiscretion, 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 before Closing and upon 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 transactions contemplated by this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.3 has been satisfied, terms as it being understood that the said conditions are included for the exclusive benefit of Purchasermay consider appropriate:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be Subscriber contained herein being true and correct in all material respects at and as of the ClosingClosing Date as though such representations had been made as of and on the Closing Date;
(b) Each the Subscriber has complied with and performed all of the Vendor and the Company shall have performed and complied in all material respects with the terms covenants, agreements and conditions in this Agreement on their respective part required hereby to be performed completed on or complied with at or before the Closing and shall have executed and delivered or caused prior 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 AgreementClosing;
(c) during the Interim Periodno order, there shall have been no Order made judgement, injunction, decree, award or writ of any court, tribunal arbitrator governmental agency or any Legal Proceedings commenced other person has been entered which prohibits or threatened for restricts the purpose of enjoining, preventing Closing or restraining the completion issuance of the transactions contemplated by this Agreement or the Option AgreementShares in connection therewith; and
(d) all regulatory approvals and consents to the transactions contemplated by this Agreement shall have been obtained and be Issuer has received the documents specified in full force and effect, including the approval 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 madesubsection 7.4.
(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 Company; 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: Share Subscription Agreement (Platinum Group Metals LTD)
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale The obligation of the Company Share pursuant Underwriters to this Agreement unless, purchase the Initial Shares at or before the Closing, each of Closing Time on the conditions listed below in this section 4.1 has been satisfied, it being understood that Closing Date and to purchase any Additional Shares at the said conditions are included for Closing Time on an Option Closing Date shall be subject to the exclusive benefit of Vendorfollowing:
(a) the Underwriters shall have received a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one business day prior to the Closing Date from each of the Company and the material GTI Entities;
(b) the Underwriters shall have received a certificate from the Company, 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 transactions contemplated hereby and thereby, the incumbency and specimen signatures of signing officers, and such other matters as the Underwriters may reasonably request;
(c) the Underwriters shall have received a certificate from the Company, dated as of the Closing Date and addressed to the Underwriters, signed by the Chief Executive Officer and the Chief Financial Officer of the 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 Purchaser 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 material respects at the Closing;
(brespects) Purchaser shall have performed and complied in all material respects with the terms same force and conditions in this Agreement on its part to be performed or complied with effect as if made at or before and as of the Closing and shall have executed and delivered or caused Time after giving effect 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 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 Option AgreementOffered 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) during the Interim Period there Underwriters shall not have received satisfactory evidence that all requisite regulatory approvals and consents have been any event or change that has had or would be reasonably likely obtained by the Company in order to complete the Offering; and (ii) all necessary forms have a Material Adverse Effect been filed with the CSE to effect the listing of the Offered Shares on Purchaserthe CSE, subject to the satisfaction of standard listing conditions of the CSE;
(e) Vendor the Underwriters shall have entered into received a consulting agreement between Vendor and Purchaserlegal opinion addressed to the Underwriters, in a form and substance satisfactory to Vendor 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 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 require, acting reasonably;
(f) the conditions Underwriters shall have received a favourable legal opinion of United States counsel to the Company, addressed to the Underwriters, in Section 4.2 form and substance acceptable to counsel to the Underwriters, acting reasonably, dated the Closing Date to the effect that no registration of the Option Agreement Offered Shares offered and sold to purchasers in the United States is or shall have been satisfiedbe required under the U.S. Securities Act;
(g) Purchaser the Underwriters shall have obtained all necessary corporate authorization and regulatory approval, including received a legal opinion addressed to 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 chequeUnderwriters, in an amount equal form and substance satisfactory to the feesUnderwriters, expenses and taxes paid or payable to W▇▇▇▇acting reasonably, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days 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 balance 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 ExpensesClosing 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) Purchaser, the Underwriters shall have received satisfactory evidence that all requisite approvals and consents have been obtained by the Company and Altius shall have entered into in order to complete the Assignment Agreement in the form set out in Schedule “B” to this Agreement; andOffering;
(j) all regulatory approvals and consents the Company shall cause the appropriate auditors to deliver to the transactions contemplated by this Agreement shall have been obtained Underwriters one or more “bring down” comfort letters, addressed to the Underwriters and be in full force and effect, including: the approval board of directors of the TSX Venture Exchange or any other stock exchange that Company, dated the securities of Purchaser are listed on or Closing Date, in form and substance satisfactory to which an application for listing has been made.
4.2 If any condition 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 letters referred to 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 its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, either:5(a)(iii) hereof;
(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 transactions 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 said conditions are included for the exclusive benefit of Purchaser:
(ak) the representations and warranties of Vendor and 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 material respects respects) at and as of the ClosingClosing 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;
(bl) Each of there shall not be any misrepresentation in the Vendor and Offering Documents or any undisclosed material change or undisclosed material facts relating to the Company or the Offered Shares;
(m) the Company shall have performed received a Preliminary Receipt and complied a Final Receipt qualifying the Offered Shares for distribution in all material respects with the terms Qualifying Jurisdictions, and conditions in this Agreement on their respective part to neither the Preliminary Receipt nor the Final Receipt shall be performed invalid 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 Agreementrevoked or rescinded by any Securities Commission;
(cn) during the Interim Period, there Underwriters shall have been no Order made or any Legal Proceedings commenced or threatened for received a certificate from Odyssey Trust Company as to the purpose number of enjoining, preventing or restraining Subordinate Voting Shares issued and outstanding as at the completion of date immediately prior to the transactions contemplated by this Agreement or the Option AgreementClosing Date; and
(do) all regulatory approvals the Underwriters shall have received such other certificates, opinions, agreements or closing documents in form and consents substance reasonably satisfactory to the transactions contemplated by this Agreement shall have been obtained and be in full force and effect, including Underwriters as the approval 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 madeUnderwriters may reasonably request.
(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 Company; 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: Underwriting Agreement
Conditions of Closing. 4.1 Vendor shall not be obligated to complete the sale of the Company Share pursuant to this Agreement unless, at or before the Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:
(a) The obligation of Purchaser to acquire the Conveyed Interests under the terms of this Agreement is contingent upon the following:
i. Seller Parties’ representations and warranties of Purchaser in this Agreement 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 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 Purchaser have agreed to mutually acceptable terms to the 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 material respects at other obligations and conditions required to be performed or observed by it on or prior to the ClosingClosing Date;
viii. Seller has satisfied with BAML the remaining amounts due under the terms of the 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, as may be required by SAWS related to its approval as per Section 1.5 below.
(b) Purchaser shall have performed and complied in all material respects with The obligation of Seller to sell the Conveyed Interests under the terms and conditions in of this Agreement on its part is contingent upon the following:
i. Purchaser Parties have caused the payments to be performed or complied with at or before the Closing paid, as set out in Sections 1.2 (a),(b) 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 (collectively the Interim Period“Transaction Payments”);
ii. Purchaser Parties’ representations and warranties in Section 2.1(a) shall be true and correct when made, there and shall be true and correct on the Closing Date;
iii. Purchaser Parties are not, as of the 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 Section 1.5(d);
vi. A termination of the Early Works Services Agreement, entered into as of July 23, 2015 (the “Early Works Services Agreement”), by and among CTRWSC and Abeinsa and, in connection therewith, a release by CTRWSC and Abengoa Vista Ridge, and all other parties who may claim by or through CTRWSC or Abengoa Vista Ridge, 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 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 Abeinsa, and a release of both parties thereto as to 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 been no Order made or released Seller Parties in connection with any Legal Proceedings commenced or threatened for the purpose, or which could have the effect, of enjoining, preventing or restraining the completion other debt related to Abengoa Vista Ridge effective as of the transactions contemplated Closing Date.
ix. A release by this Agreement or the Option Agreement;
SAWS of (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;
(fi) the conditions in Section 4.2 Abengoa guaranty arising under the terms of the Option Guaranty Agreement shall have been satisfied;
(gas defined in the WTPA), and (ii) Purchaser shall have obtained all necessary corporate authorization the Abengoa Letter of Support (as defined in the WTPA), as well as a substitution of a similar guaranty and regulatory approval, including the approval letter of support and related documentation included in Appendix 16 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 payable to W▇▇▇▇, GWTPA from ▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation Companies, Inc. in favor of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this Agreement; and
(j) 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 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 madeSAWS.
4.2 If any condition in Section 4.1 x. Purchaser has not been fulfilled at or before the Closing or if any such condition delivered to SAWS those documents and instruments for which it is or becomes impossible to satisfyresponsible, other than as a result of the failure of Vendor to comply with its obligations under this Agreement, then Vendor in its sole discretion may, without limiting any rights or remedies available to Vendor at law or in equity, either:
(a) terminate this Agreement may be required by notice to Purchaser; or
(b) waive compliance with any such condition without prejudice SAWS related to its right of termination in the event of non-fulfillment of any other conditionapproval as per Section 1.5 below.
4.3 xi. Purchaser 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 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company Parties shall have performed and complied in all material respects with the terms other obligations and conditions in this Agreement on their respective part required to be performed or complied with at observed by it on or before prior to 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;Date.
(c) during The above notwithstanding, in the Interim Periodevent the Conditions to Closing are not completed or the Closing has not occurred by June 3, there 2016, this Agreement shall automatically terminate and the Seller Parties, Abengoa Vista Ridge and Purchaser Parties will have been no Order made or any Legal Proceedings commenced or threatened for further obligations to each other under the purpose terms of enjoiningthis Agreement; provided, preventing or restraining however, if Purchaser Parties have paid the completion March Loan Payment at the time of the transactions contemplated by termination of this Agreement or under this Section, Seller shall reimburse Purchaser a sum equal to the Option Agreement; andMarch Loan Payment within five (5) business days from the date of such termination.
(d) all regulatory approvals and consents Notwithstanding anything to the transactions contemplated by this Agreement shall have been obtained and be in full force and effectcontrary, including the approval upon Purchaser’s payment 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 March Loan Payment, Seller may 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 Company; or
(b) waive compliance with any such condition without prejudice to its right of termination except in the event case of non-fulfillment of any other conditiona default by Purchaser or as per Section 1.4 (c) above.
Appears in 1 contract
Conditions of Closing. 4.1 Vendor shall not be obligated in Favour of the Purchaser The obligations of the Purchaser to complete the sale Transaction are subject to the fulfillment of the Company Share pursuant to this Agreement unless, at following conditions on or before the Time of Closing, each of the conditions listed below in this section 4.1 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Vendor:
(a) the Shareholders and FSB shall have 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 consent of each of the New FSB Shareholders, if any, evidenced by the delivery of the FSB Shareholder Consent Agreements;
(d) the Common Shares, including the Payment Shares and the 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 Purchaser FSB set forth in this Agreement shall have been true and correct as of the date hereof and shall be true and correct at the Time of Closing in 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 this effect shall have been delivered to the 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 of the date hereof and shall be true and correct in all material respects at as of the ClosingTime 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;
(bj) Purchaser shall have performed and complied in all material respects with of the terms terms, covenants and conditions in of this Agreement on its part to be performed or complied with or performed by the Shareholder at or before the Time of Closing and shall have executed and delivered or caused to will have been executed complied with or performed and delivered to Vendor at delivery of the Closing all the documents, payments documents described in Section 4.04 shall constitute confirmation of such compliance and certificates contemplated in section 5.3 and elsewhere in this Agreementperformance;
(ck) during the Interim PeriodPurchaser shall be satisfied with the results of its due diligence investigations relating to FSB and the Transaction, there shall have been no Order made 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 any Legal Proceedings commenced other persons, including all those party to the material contracts listed in Schedule 5.03(p), necessary to conduct the business of FSB or threatened for the purpose, or which could have the effect, of enjoining, preventing or restraining permit the completion of the transactions contemplated by this Agreement Transaction shall have been obtained or the Option Agreementhave been attempted to be obtained on a best efforts basis;
(dn) during the Interim Period there shall not have been after the date of this Agreement any event or change that has had or would be reasonably likely to have a Material Adverse Effect on Purchaserwith respect to FSB;
(eo) Vendor there shall have entered into a consulting agreement between Vendor and Purchaserbe no action taken under any applicable law by any court or Governmental Authority that makes it illegal or restrains, enjoins or prohibits the Transaction, results in a form satisfactory judgment or assessment of damages relating to Vendor the Transaction that is materially 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 Companyeconomic or business benefits of the Transaction as to render inadvisable the consummation of the Transaction;
(fp) 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 conditions in Section 4.2 opinion 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 payable to W▇▇▇▇, G▇▇▇▇▇▇ and M▇▇▇▇▇ Limited for the preparation of a technical report on the Property, and Purchaser shall have made arrangements for the repayment to Vendor, within 120 days of the Closing Date, of the balance of the Expenses;
(i) Purchaser, acting reasonably, adversely affects or may adversely affect the Company and Altius shall have entered into the Assignment Agreement in the form set out in Schedule “B” to this AgreementTransaction; and
(jq) all regulatory approvals and consents to the transactions contemplated by this Agreement Closing Date 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 Termination Date. The foregoing conditions precedent are for the benefit of the failure of Vendor to comply with its obligations under this AgreementPurchaser and may be waived by the Purchaser, then Vendor in its sole discretion may, without limiting any rights or remedies available to Vendor at law whole or in equitypart, either:
(a) terminate this Agreement by notice to Purchaser; or
(b) waive compliance with any such condition without prejudice to its the Purchaser’s right of termination in the event of non-fulfillment of to rely on any other condition.
4.3 Purchaser shall not be obligated to complete the transactions contemplated by this Agreement unless, at or before the Closing, each condition in favour of the conditions listed below in this section 4.3 has been satisfied, it being understood that the said conditions are included for the exclusive benefit of Purchaser:
(a) the representations and warranties of Vendor and the Company in this Agreement shall be true and correct in all material respects at the Closing;
(b) Each of the Vendor and the Company 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 Vendor at the Closing all the documents, payments and certificates contemplated in section 5.2 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 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 approval 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 Company; 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