Conditions of Closing. The following are conditions precedent to the obligations of the Agent to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agent: (a) the Corporation shall have caused its counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent acting reasonably, with respect to the following matters: (i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions; (ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia); (iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus; (iv) the authorized and issued share capital of the Corporation; (a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation; (vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants; (vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions; (viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares; (ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia); (x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created; (xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares; (xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares; (xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable; (xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws; (xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws; (xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein; (xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE; (xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus; (xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws; (xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue; (xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws); (xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue; (xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws); (xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions; (xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and (xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others; (b) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation; (c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof; (d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that: (i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects; (ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority; (iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be; (iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and (v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement; (e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on the
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The following are conditions precedent amendment and restatement of the Original Loan Agreement pursuant to this Subordinated Loan Agreement is subject to the obligations of the Agent to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which following conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agentprecedent:
(a) the Corporation The Subordinated Agent shall have caused received copies of each of the following documents in form and content satisfactory to the Subordinated Agent and its counsel, Stikeman Elliott LLPduly executed by the parties thereto and, to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent and the Purchaserswhere applicable, in form and substance satisfactory to the Agent acting reasonably, with respect to the following mattersacknowledged:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;The Subordinated Loan Documents.
(ii) Opinions of counsel to the Corporation being a corporation existing Borrower delivered on the Effective Date and on the Closing Date as the Subordinated Agent may request and that are acceptable to the Subordinated Agent addressing the existence and good standing of the Borrower and each Subsidiary, the authorization of the Subordinated Loan Documents, the enforceability of the Subordinated Loan Documents and the perfection of the liens under the laws Subordinated Loan Documents, the absence of conflicts with law, other material agreements, and court orders, the Business Corporations Act (British Columbia);absence of litigation, and such other matters as the Subordinated Agent may request.
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business Certificates, dated as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws Effective Date, of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly Secretary or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery an Assistant Secretary of each of the Preliminary Prospectus Borrower and the Final Prospectus Subsidiaries (A) certifying as true, complete and any Supplementary Material and correct the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents charter and by-laws of the Corporation; Borrower and each Subsidiary, and resolutions of the Board of Directors of the Borrower and each respective Subsidiary attached thereto, (B) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Borrower and each Subsidiary, (iiiC) Applicable Securities Laws;as to the incumbency of the officers of the Borrower and the Subsidiaries who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Subordinated Loan Documents, and (D) covering such other matters, and with such other attachments thereto, as the Subordinated Agent may request, and such certificate and the attachments thereto shall be satisfactory in form and substance to the Subordinated Agent.
(xviv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents Original Certificates of the appropriate regulatory authority in Title to each of the Qualifying Jurisdictions having been obtained certificated vehicles owned by the Corporation to qualify the distribution Borrower or any of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied Subsidiaries, each endorsed by the applicable Subordinated Loan Party to evidence that such vehicle is subject to a security interest in favor of the Subordinated Agent for the benefit of the Subordinated Lenders.
(v) All other documents reasonably requested by the Subordinated Agent in connection with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained transaction contemplated by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;this Subordinated Loan Agreement.
(b) Each of the Mortgages, Financing Statements, and Certificates of Title referenced in subparagraph (a) above, and any other document reasonably required by the Subordinated Agent to be filed of record, shall have received a certificate, dated as been filed of record with the appropriate party in order to put third parties on notice of the Closing Dateliens, signed security interests or other rights granted by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained Subordinated Loan Parties in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on theCollateral.
Appears in 1 contract
Sources: Subordinated Loan Agreement (Sierra Well Service Inc)
Conditions of Closing. The following are conditions precedent to the obligations of the Agent to complete the Closing and of the Purchasers Underwriters’ obligation to purchase the Offered Securities Shares pursuant to this Agreement (including the obligation to complete the purchase of the Base Shares and the Over-Allotment Shares, as the case may be) shall be subject to the following conditions having been met at the Closing Time:
(1) the Underwriters receiving favourable legal opinions from Blake, which conditions ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Corporation covenants (who may rely, to the extent appropriate in the circumstances, on the opinions of local counsel acceptable to counsel to the Underwriters as to the qualification of the Offered Shares for sale to the public and agrees as to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part other matters governed by the Agentlaws of jurisdictions in Canada other than the provinces in which they are qualified to practice and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers, public and exchange officials or of the auditor or transfer agent of the Corporation), to the effect set forth below:
(a) the Corporation shall have caused its counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated is a valid and delivered on the Closing Date addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent acting reasonably, with respect to the following matters:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default subsisting corporation under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the and has all requisite corporate power and capacity to carry on business, to own and lease its property properties and assets as currently conducted and as contemplated to conduct its Business as described be conducted in the Final ProspectusOffering Documents;
(ivb) the Corporation has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and to issue and sell the Offered Shares, grant the Over-Allotment Option and issue the Broker Warrants;
(c) the authorized and issued share capital of the Corporation;
(ad) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power action has been taken by the Corporation to authorize the execution and capacity to execute delivery of this Agreement and deliver the Transaction Documents and to perform performance of its obligations hereunder and thereunderthis Agreement has been duly executed and delivered by the Corporation and constitutes a legal, including to create, issue valid and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise binding obligation of the Warrants Corporation enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to issue such other standard assumptions and qualifications including the Broker Shares issuable upon qualifications that equitable remedies may be granted in the exercise discretion of the Broker’s Warrantsa court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law;
(viie) the Corporation has the necessary corporate power execution and authority to sign and deliver the Preliminary Prospectus delivery of this Agreement and the Final Prospectus fulfilment of the terms hereof by the Corporation and the issuance, sale and delivery of the Offered Shares, the grant of the Over-Allotment Option and the issuance of the Broker Warrants, do not and will not result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with the articles and by-laws of the Corporation, any resolutions of the shareholders or directors of the Corporation, or any applicable corporate law or Canadian Securities Laws;
(f) all necessary corporate action having has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material Material) and the filing thereof with the Securities Commissions;
(viiig) the Offered Shares and the Corporate Finance Fee Shares having have been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Sharesshares in the capital of the Corporation;
(ixh) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants Over-Allotment Shares have been duly and validly authorizedauthorized and allotted for issuance, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the Over-Allotment Option and payment of the exercise price therefor and consideration therefor, the issue thereof in accordance with the terms of the Warrant Indenture, being Over-Allotment Shares will have been validly issued as fully paid and non-assessable Common Sharesshares in the capital of the Corporation;
(xiii) the Broker Warrants have been validly issued as fully paid securities of the Corporation;
(j) the Broker Shares issuable have been duly and validly authorized and allotted for issuance, and upon exercise of the Broker’s Broker Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms provisions thereof and payment of the consideration therefor, the Broker Warrant Certificates, being Shares will have been validly issued as fully paid and non-assessable Common Sharesshares in the capital of the Corporation;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xixk) all necessary documents have been filed, all necessary proceedings have been taken and all legal requirements necessary authorizations, approvals, permits, consents and orders have been fulfilled as required obtained under the Applicable Canadian Securities Laws in order to qualify permit the Offered SecuritiesShares to be offered, the Broker’s Warrants sold and the Corporate Finance Fee Shares for distribution delivered in the Qualifying Provinces Jurisdictions by or through investment dealers or brokers who are duly registered under the Applicable applicable Canadian Securities Laws and who have complied comply with the relevant provisions of such laws and the Applicable Securities Lawsterms of such registration and to qualify the grant of the Over-Allotment Option and the issuance of the Broker Warrants to the Underwriters;
(xxl) the issue and delivery issuance by the Corporation in the Qualifying Provinces of the Warrant Broker Shares to the holders of Warrants upon their due exercise pursuant to the terms of the Warrant Indenture being Broker Warrants is exempt from, or is not subject to, the prospectus requirements of Applicable Canadian Securities Laws and no prospectus or other documents being are required to be filed, proceedings taken taken, or authorizations, approvals, permits, consents or authorizations required to be orders obtained under Applicable Canadian Securities Laws (other than such as will have already been filed or obtained) to permit such issuein connection therewith;
(xxim) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being Broker Shares is exempt from, or is not subject to, the prospectus requirements of Applicable Canadian Securities Laws and no prospectus filing, proceeding, authorization, approval, permit, consent or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required order will need to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit laws in connection with any such trade, provided that the trade will is not be a “control distribution” (as such term is defined in National Instrument NI 45-102 – Resale of Securities), 102) and the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiin) the issue Offered Shares will, on the Closing Date, be qualified investments under the Income Tax Act (Canada) for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, deferred profit sharing plans, registered disability savings plans and delivery by tax free savings accounts;
(o) subject only to standard listing conditions, the Corporation in the Qualifying Provinces of Offered Shares and the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed conditionally listed or posted by approved for listing on the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant IndentureTSX; and
(xxvip) TMX Equity Transfer Services Inc. having been duly appointed to such other matters as may reasonably be requested by the transfer agent Underwriters no less than 48 hours prior to the Closing Time; in form and registrar for substance acceptable to the Common Shares. In connection with such opinionsUnderwriters and their counsel, acting reasonably.
(2) the Underwriters receiving favourable legal opinions from legal counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel the Underwriters, regarding the material Subsidiaries in form and substance satisfactory to the AgentUnderwriters and their counsel, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in effect set out below:
(a) the circumstances, as to matters material Subsidiaries having been incorporated and existing under their jurisdiction of fact on certificates of officers of the Corporation and othersincorporation;
(b) the Agent shall have received a certificate, dated material Subsidiaries having the corporate power and capacity to own and lease their properties and assets (tangible or intangible) and to conduct their businesses as currently conducted and as contemplated to be conducted in the Offering Documents; and
(c) as to the authorized and issued share capital of the material Subsidiaries and to the ownership thereof;
(3) the Underwriters receiving certificates dated the Closing Date, Date and signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) two senior officers of the Corporation as may be acceptable to the Agent may agreeUnderwriters, certifying for acting reasonably, in form and on behalf of substance satisfactory to the Corporation Underwriters, acting reasonably, with respect to: :
(ia) the constating documents of the Corporation; ;
(iib) the resolutions of the Corporation’s board directors of directors the Corporation relevant to the Offering and Documents, the sale of the Offered Shares, the grant of the Over-Allotment Option, the distribution of the Broker Warrants, and, as applicable, the authorization of this Agreement and the other agreements and transactions contemplated herein; and and
(iiic) the incumbency and signatures of signing officers of for the Corporation;
(c4) the Underwriters receiving certificates of status and/or compliance, where issuable under applicable law, for the Corporation shall cause and the Auditors Subsidiaries, each dated within one (1) Business Day, prior to deliver to the Agent a comfort letter, dated as of the Closing Date;
(5) the Underwriters receiving a “bring down” comfort letter dated the Closing Date from the auditors of the Corporation, KPMG LLP, in form and substance satisfactory to the AgentUnderwriters, acting reasonably, bringing forward to a date not more than two (2) Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iiiSection 4(1)(c) hereof;
(d6) the Agent shall have received Underwriters receiving a certificate, certificate dated as of the Closing Date, Date and signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officers senior officer(s) of the Corporation as may be acceptable to the Agent may requestUnderwriters, certifying for and on behalf of the CorporationCorporation and without personal liability, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Materialenquiries, that:
(ia) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Shares or any other securities of the Corporation (including the Common Shares) has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending, threatened or, to the knowledge of the Corporation, contemplated by any regulatory authority;
(b) since the respective dates as of which information is given in the Final Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets (tangible or intangible), liabilities (contingent or otherwise), prospects or capital of the Corporation on a consolidated basis, and (B) no transaction has been entered into by either the Corporation or the Subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Final Prospectus or the Supplementary Material, as the case may be;
(c) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws;
(d) the Corporation has complied in all material respects with all of the covenants and satisfied in all of material respects all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidentialTime; and
(ve) the representations and warranties of the Corporation contained in this Agreement Agreement, and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct in all material respects (other than those which are qualified by materiality, in which case are true and correct in all respects) as at of the Closing Time in all material respects, with the same force and effect as if such representations and warranties were made on and as at the Closing Time, after giving effect to the transactions contemplated by hereby;
(7) the Underwriters receiving the executed lock-up agreements from each director and officer of the Corporation in favour of the Underwriters in a form satisfactory to the Underwriters as required pursuant to Section 8(3) of this Agreement;
(e8) the Underwriters receiving, at the Closing Time, a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the end of business day on the date prior to the Closing Date;
(9) all consentsno order, approvals, permits, authorizations ruling or filings as may be required to be made determination having the effect of ceasing or obtained by suspending trading in any securities of the Corporation under Applicable Securities Laws in or prohibiting the Qualifying Provinces necessary for the offer and sale of the Offered Securities, Shares or any of the execution Corporation’s issued securities being issued and delivery no proceeding for such purpose being pending or threatened by any securities regulatory authority or the TSX;
(10) the Corporation having delivered to the Underwriters evidence of this Agreement the approval (or conditional approval) of the listing and posting for trading of the Offered Shares and the consummation Broker Shares on the TSX, subject only to notice of issuance or satisfaction by the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing Corporation of standard documents with listing conditions;
(11) the CSEUnderwriters receiving excerpts from the list of reporting issuers not in default maintained by the Securities Commissions;
(12) the Underwriters receiving written evidence satisfactory to the Underwriters, which documents will be filed as soon as practicable after the Closing Date andacting reasonably, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for waivers, consents and/or approvals, if any, from the lenders to the Corporation under the Credit Agreements in respect of (i) the Offered Shares; Offering, and (ii) the Warrant Shares; use of proceeds from the Offering as set out in the Offering Documents;
(iii13) the Broker Shares issuable upon exercise Corporation complying with all of its covenants and obligations under this Agreement required to be satisfied at or prior to the Broker’s Warrants; and Closing Time;
(iv14) the Corporate Finance Fee Shares Underwriters not having exercised any rights of termination set forth herein; and
(15) the Underwriters receiving such further certificates, opinions of counsel and other documentation from the Corporation contemplated herein, provided, however, that the Underwriters or their counsel shall request any such certificate or document within a reasonable period prior to be conditionally listed on thethe Closing Time that is sufficient for the Corporation to obtain and deliver such certificate, opinion or document.
Appears in 1 contract
Conditions of Closing. The following sale of the Units and the release of subscription funds from the escrow account are conditions precedent subject to the obligations accuracy of the Agent to complete the Closing representations and warranties of the Purchasers parties hereto, to purchase the Offered Securities at performance by such parties of their respective obligations hereunder and to the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agentfollowing further conditions:
(a) the Corporation The Registration Statement shall have caused its counselbecome 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, Stikeman Elliott and the CFTC shall have filed the Prospectus as a Disclosure Document without a finding of further deficiencies.
(b) At the Initial Closing Time, either Sidley Austin Brown & Wood LLP, to deliver counsel to the Agent legal opinions dated and delivered on the Closing Date addressed Managing Owner, Richar▇▇, ▇▇▇▇▇▇ & Fi▇▇▇▇, P.A., Delaware counsel to the Agent and Manag▇▇▇ ▇▇▇▇▇, ▇▇ _____________, Connecticut counsel to the PurchasersManaging Owner, shall deliver its opinion, in form and substance satisfactory to the Agent acting reasonablyparties hereto, with respect to the following matterseffect that:
(i) The Certificate of Trust pursuant to which the Corporation being a “reporting issuer”, or its equivalent, in each Trust has been formed and the Trust Agreement of the Qualifying Jurisdictions Trust each provides for the subscription for and not in default under Applicable Securities Laws sale of the Units; all action required to be taken by the Managing Owner and the Trust 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 Qualifying Jurisdictions;accepted Subscription Agreements and Powers of Attorney, the Units will constitute valid units of beneficial interest in the Trust and each subscriber who purchases Units will become a Unitholder with the same limitation on personal liability as a stockholder in a private corporation for profit under the laws of the State of Delaware, subject to the requirement that each such purchaser shall have duly completed, executed and delivered to the Managing Owner a Subscription Agreement and Power of Attorney relating to the Units purchased by such party, that such purchaser meets all applicable suitability standards and that the representations and warranties of such purchaser in the Subscription Agreement and Power of Attorney are true and correct.
(ii) The Trust is a statutory trust duly and validly organized pursuant to the Corporation being a corporation Certificate of Trust, the Trust Agreement and the Delaware Act, and is validly existing under the laws of the Business Corporations Act (British Columbia);State of Delaware with full power and authority to conduct the business in which it proposes to engage as described in the Prospectus.
(iii) the Corporation having the corporate power The Managing Owner is duly organized, validly existing and capacity to own and lease its property and assets and to conduct its Business in good standing as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the State of Connecticut and is in good standing and qualified to do business in each other jurisdiction in which it exists, and has all requisite corporate power the failure to carry on its business as now conducted and so qualify might reasonably be expected to own, lease and operate its property and assets; and (b) as result in material adverse consequences to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation Trust. The Managing Owner has the necessary full corporate power and authority to sign and deliver perform its obligations as described in the Preliminary Registration Statement, the Prospectus and herein.
(iv) The Managing Owner (including the Final Prospectus Managing Owner's principals) and the Trust each has all federal and state governmental and all regulatory and self-regulatory approvals and licenses, and has received or made all filings and registrations with federal and state governmental and all regulatory and self-regulatory agencies necessary corporate action having in order for the Managing Owner and the Trust, respectively, to conduct their respective businesses as described in the Registration Statement and Prospectus, and, to the best of their knowledge, none of such approvals, licenses or registrations have been taken rescinded or revoked.
(v) Each of the Trust Agreement, the Escrow Agreement, the Customer Agreement, the Advisory Agreements and this Agreement has been duly authorized, executed and delivered by or on behalf of the Corporation Managing Owner and/or the Trust, as the case may be, and assuming that such agreements are binding on the other parties thereto and hereto, each of the Trust Agreement, the Escrow Agreement, the Customer Agreements, the Advisory Agreements and this Agreement constitutes a valid, binding and enforceable agreement of the Managing Owner and/or the Trust, as the case may be, in each case in accordance with its terms, subject to authorize bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and except as enforceability of indemnification provisions may be limited by applicable law and the enforcement of any specific terms or remedies may be unavailable.
(vi) The execution and delivery of each this Agreement, the Trust Agreement, the Escrow Agreement and the Advisory Agreements, and the incurrence of the Preliminary obligations herein, therein and in the Prospectus set forth and the Final consummation of the transactions contemplated herein, therein and in the Prospectus and will not be in contravention of any Supplementary Material and of the filing thereof with provisions of the Securities Commissions;Managing Owner's certificate of incorporation or by-laws and, to the best of their knowledge, will not constitute a breach of, or default under, any instrument by which the Managing Owner or the Trust is bound or any order, rule or regulation applicable to the Managing Owner or the Trust of any court or any governmental body or administrative agency having jurisdiction over the Managing Owner or the Trust.
(vii) To the best of their knowledge (without having made any particular inquiry or docket search), there are no actions, claims or proceedings pending or threatened in any court or before or by any governmental or administrative agency or regulatory or self-regulatory body, nor have there been any such suits, claims or proceedings within the last five years, to which the Managing Owner (or any principal of the Managing Owner) or the Trust is or was a party, or to which any of their assets is or was subject, which are required to be, but are not, disclosed in the Registration Statement or Prospectus or which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust.
(viii) No authorization, approval or consent of any governmental or self-regulatory authority or agency is necessary in connection with the Offered Shares subscription for and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment sale of the purchase price therefor and Units, except such as may be required under the issuance thereof1933 Act, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;CE Act, NFA compliance rules, NASD rules or applicable securities or "Blue Sky" laws.
(ix) The information in the form Prospectus under the caption "Federal Income Tax Consequences," to the extent that such information constitutes matters of law or legal conclusions, has been reviewed by them and terms is correct in all material respects, insofar as it relates to the income tax consequences to the Trust and to the federal income tax consequences of an investment in the Trust by U.S. individual taxpayers.
(x) The Registration Statement is effective under the 1933 Act and no proceeding for a stop order is pending or, to the best of their knowledge, threatened under Section 8(d) or Section 8(e) of the Broker Warrant Certificates having been approved by 1933 Act or any applicable state "Blue Sky" laws.
(xi) At the board of directors of time the Corporation Registration Statement and complying any post-effective amendment thereto became effective, the Registration Statement, and at the time the Prospectus and any amendments or supplements thereto were first issued, the Prospectus, complied as to form in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized1933 Act, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered SecuritiesSEC Regulations, the Broker’s Warrants and the Corporate Finance Fee SharesCE Act, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the CFTC regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
NFA. Nothing has come to their attention that would cause them to believe that (xviiia) at the attributes of time that the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus Registration Statement and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securitiesany post-effective amendment thereto became effective, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by Registration Statement contained any untrue statement of a material fact or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares omitted to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being state a material fact required to be filed, proceedings taken stated therein or approvals, permits, consents or authorizations required necessary to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) make the first trade instatements therein not misleading, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received Prospectus as first issued or as subsequently issued or at Closing Time contained an untrue statement of a certificatematerial fact or omitted to state a material fact necessary in order to make the statements therein, dated as in the light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief (A) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (B) as to the performance data set forth in the Registration Statement.
(xii) Assuming operation in accordance with the Prospectus, the Trust at a Closing DateTime will not be an "investment company" as that term is defined in the Investment Company Act of 1940, signed by the Chief Executive Officer and the Chief Financial Officer Managing Owner need not be registered as an "investment adviser" under the Investment Advisers Act of 1940 in respect of its management of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;Trust.
(c) At the Corporation shall cause Initial Closing Time, counsel for the Auditors to Selling Agent (as selected by such Selling Agent) shall, if required by the Managing Owner, deliver its opinion to the Agent a comfort letter, dated as of the Closing Dateparties, in form and substance satisfactory to the Agentparties, acting reasonably, bringing forward to a date not more than two Business Days prior to regarding such pertinent matters as the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;Managing Owner may deem appropriate.
(d) At the Agent shall have received a certificateInitial Closing Time, dated counsel for each Trading Advisor (as of the Closing Dateselected by each such Trading Advisor) shall, signed if required by the Chief Executive Officer Managing Owner, deliver its opinion to the parties, in form and Chief Financial Officer of substance reasonably satisfactory to the Corporationparties, or regarding such other officers of the Corporation pertinent matters as the Agent Managing Owner may requestdeem appropriate.
(e) At the Initial Closing Time, certifying for Richards, Layton & Finger, P.A., Delaware counsel to the Manag▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ deliver its opinion, on which Sidley Austin Brown & Wood LLP may rely, in form and on behalf of substance satisf▇▇▇▇▇▇ ▇▇ ▇▇e M▇▇▇▇ing Owner.
(f) At each Closing Time, the Corporation, after having made due enquiry and after having carefully examined Managing Owner shall deliver a certificate to the Final Prospectus and any Supplementary Material, effect that:
: (i) no order suspending the Corporation has complied with all effectiveness of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation Registration Statement has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having therefor have been instituted or being pending or, to the best of their knowledge of such officersupon due and diligent inquiry threatened by the SEC, contemplated the CFTC or threatened under any relevant securities laws other regulatory or self-regulatory body; (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(vii) the representations and warranties of the Corporation Managing Owner contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, herein are true and correct with the same effect as though expressly made at the such Closing Time and in respect of the Registration Statement as in effect at such Closing Time; and (iii) the Managing Owner has performed all covenants and agreements herein contained which are required to be performed on its part at or prior to such Closing Time.
(g) At or prior to the Initial Closing Time, the Trust shall have received a capital contribution of the Managing Owner in the amount required by its Trust Agreement and as described in the Prospectus.
(h) At the Initial Closing Time, the Selling Agents shall have received letters from one or more accounting firms describing certain agreed upon procedures which they have performed in reviewing certain performance numbers set forth in the Prospectus.
(i) Each Trading Advisor shall deliver a report dated as of the Initial Closing Time, which shall present, for the period from the date after the last day covered by the actual Performance Summaries in the Prospectus (with respect to the Trading Advisors) to the Managing Owner to the latest practicable day before the Initial Closing Time, figures which shall be a continuation of such Summaries and which shall certify that such figures are accurate in all material respects. The Trading Advisors shall also certify that such Tables have been calculated in accordance with the notes to the applicable Summaries in the Prospectus.
(j) At each Additional Closing Time thereafter, the parties hereto shall have been furnished with such information, opinions and certified documents as the Managing Owner may deem to be necessary or appropriate.
(k) At each Additional Closing Time, each Trading Advisor shall deliver a certificate to the effect that (i) the representations and warranties of such Trading Advisor contained herein are true and correct with the same force and effect as if though expressly made on at such Additional Closing Time and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the OfferingRegistration Statement as in effect at such Additional Closing Time, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) such Trading Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to such Additional Closing Time.
(l) At the Warrant Shares; (iii) the Broker Shares issuable upon exercise Initial Closing Time, executed copies of the Broker’s WarrantsTrust Agreement, the Escrow Agreement, the Advisory Agreements, and this Agreement shall be delivered to all parties.
(m) The parties hereto shall have been furnished with such additional information, opinions and documents, including supporting documents relating to parties described in the Prospectus and certificates signed by such parties with regard to information relating to them and included in the Prospectus as they may reasonably require for the purpose of enabling them to pass upon the sale of the Units as herein contemplated and related proceedings, in order to evidence the accuracy or completeness of any of the representations or warranties or the fulfillment of any of the conditions herein contained; and (iv) all actions taken by the Corporate Finance Fee Shares 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, counsel for the Managing Owner a▇▇ ▇▇ ▇▇▇▇▇▇l f▇▇ ▇he Selling Agent. If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement to be conditionally listed on thefulfilled prior to a Closing Time, 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 prior to such Closing Time, and any such cancellation or termination shall be without liability of any party to any other party other than in respect of Units already sold and except as otherwise provided in Sections 6 and 11 of this Agreement.
Appears in 1 contract
Conditions of Closing. 13.1 The following are conditions precedent Underwriters’ obligations under this Agreement will be subject to the obligations following conditions being fulfilled which are for the exclusive benefit of the Agent to complete the Closing and Underwriters, any of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing waived, in whole or in part part, by the AgentUnderwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Corporation shall Underwriters will have caused its counselreceived a legal opinion, Stikeman Elliott LLPsubject to customary limitations, to deliver to the Agent legal opinions assumptions and qualifications, dated and delivered on as of the Closing Date addressed to the Agent Underwriters from the Issuer and the Purchasers, Issuer’s Canadian counsel in form and substance satisfactory content to the Agent acting reasonably, reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the following mattersUnderwriters may reasonably request, including the following:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;Issuer:
(ii1) the Corporation being is a corporation incorporated and validly existing under the laws of the Business Corporations Act (British Columbia);its jurisdiction of incorporation; and
(iii2) the Corporation having the has all necessary corporate power power, authority and capacity to own and or lease its property and assets and to conduct carry on its Business business as presently conducted as described in the Final Prospectus;
(ivii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Final Prospectus will be validly issued and issued share capital outstanding as fully paid and non-assessable securities of the CorporationIssuer;
(aiii) to its knowledge, as of the Closing Time, except for the Debentures, the 6.75% convertible subordinated unsecured debentures due June 30, 2015 and the 7.50% convertible subordinated unsecured debentures due October 31, 2014, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the execution, certification, issue, sale and delivery of the Debentures and all necessary corporate action has been taken by the Issuer to create and validly issue the Underlying Shares;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the Trust Indenture and the performance of its obligations thereunder, and this Agreement and the Trust Indenture have been duly executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against it in accordance with their respective terms, provided that the Subsidiary is a corporation existing under the enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the jurisdiction in which it existsenforcement of creditors’ rights generally, specific performance, injunctive relief and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, other equitable remedies may be granted only in the name discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement and the CorporationTrust Indenture may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the Corporation having all necessary corporate power execution and capacity to execute delivery by the Issuer of this Agreement, the Trust Indenture and deliver the Transaction Documents and to perform Debentures, or the performance by the Issuer of its obligations hereunder and or thereunder, including to createas applicable, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue consummation by the Warrant Shares issuable upon the exercise Issuer of the Warrants Offering, including the creation, issuance, sale and to issue the Broker Shares issuable upon the exercise delivery of the Broker’s WarrantsDebentures (and the Underlying Shares), except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the Corporation has execution and the necessary corporate power delivery of this Agreement and authority the Trust Indenture, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to sign and deliver its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Preliminary Prospectus and the Final Prospectus Prospectus, in both the French and all necessary corporate action having been taken by the Corporation to authorize English languages, and the execution and delivery filing of each of the Preliminary Prospectus and the Final Prospectus Prospectus, in both the French and any Supplementary Material and the filing thereof English languages, with the Securities Commissions;
(viii) Commissions have been duly approved and authorized by all necessary corporate action by the Offered Shares Issuer, and each of the Preliminary Prospectus and the Corporate Finance Fee Shares having Final Prospectus, in both the French and English languages, have been duly and validly authorized for issuance and that, at executed by the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common SharesIssuer;
(ix) the form and terms distribution of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying Debentures complies, in all material respects respects, with all laws in the requirements Province of Quebec relating to the use of the Business Corporations Act (British Columbia)French language in connection therewith;
(x) the Warrants Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Broker’s Warrants have been validly authorized, issued and createdSecurities Laws of any Qualifying Jurisdiction;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having have been filed, all requisite proceedings having have been taken and all approvals, permits, authorizations and consents other legal requirements have been fulfilled under the laws of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation in order to qualify the Debentures for distribution of and sale to the Offered Securities public through persons investment dealers or brokers who are registered under Applicable Securities Laws applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of Applicable Securities Lawssuch applicable legislation;
(xvixii) subject to the qualifications set out in form and terms of the Preliminary Prospectus certificates for the Debentures have been approved and adopted by the directors of the Issuer and comply with the terms and conditions of the Trust Indenture and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary requirements of the matters discussed thereinTSX;
(xviixiii) no filing, proceeding, approval, consent or authorization is required the TSX has conditionally approved the listing and posting for trading of the Debentures and the Underlying Shares subject to be made, taken or obtained fulfilling the Standard Listing Conditions by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance date required by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSETSX;
(xviiixiv) as long as the attributes of Debentures or the Offered Securities Underlying Shares are consistentlisted on a designated stock exchange, as defined in all material respectsthe Tax Act, the Debentures will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans (except a deferred profit sharing plan to which the Issuer, or an employer that does not deal at arm’s length with the descriptions in the Preliminary Prospectus Issuer, has made a contribution), registered disability savings plans and the Final Prospectustax-free savings accounts;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xxxv) the issue and delivery by the Corporation Trust Company, at its principal offices in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt fromToronto, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having has been duly appointed as the warrant registrar and transfer agent pursuant with respect to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having Shares and Computershare Trust Company of Canada, at its principal office in Toronto, has been duly appointed as the transfer agent and registrar for trustee under the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation Trust Indenture with respect to those items and as to other matters governed by the laws of jurisdictions other than Debentures; and
(xvi) the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers directors of the Corporation and others;Issuer are duly appointed.
(b) the Agent shall Underwriters will have received a certificatelegal opinion, dated as of the Closing DateDate and addressed to the Underwriters, from Torys LLP, Canadian counsel to the Underwriters, in form and content to the reasonable satisfaction of the Underwriters with respect to such matters as the Underwriters may reasonably request;
(c) the Underwriters will have received certificates dated the Closing Date signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and those senior officers on behalf of the Corporation Issuer, as may be acceptable to the Underwriters, acting reasonably, in form and content satisfactory to the Underwriters, acting reasonably, with respect to: to all such matters as the Underwriters may reasonably request, including the following:
(i) the constating documents of the Corporation; Issuer;
(ii) the resolutions of the Corporation’s board directors of directors the Issuer relevant to the Offering approval of the Final Prospectus and the authorization signing and filing thereof, creation, issuance and sale of the other agreements and transactions contemplated hereinDebentures; and and
(iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereofIssuer;
(d) the Agent shall Underwriters will have received a certificate, dated as of at the Closing Date, Time a certificate dated the Closing Date addressed to the Underwriters and signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other two senior officers of the Corporation as the Agent may requestIssuer, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, thatIssuer:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, Prospectus or any Supplemental Material there has not occurred been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) to the business, affairs, assets, liabilities (contingent or otherwise), capital or prospects of the Issuer or its subsidiaries, taken as a Material Adverse Effect whole, and none of the Issuer or its subsidiaries has entered into any change transaction out of the ordinary course of business which is material to the Issuer or development involving the subsidiaries, taken as a prospective Material Adverse Effectwhole, other than as disclosed in the Final Prospectus or any Supplementary Supplemental Material, as the case may be;
(ivii) there are no material change relating to actions, suits, proceedings or inquiries pending or threatened against or affecting the Corporation and Issuer or its subsidiaries at law or in equity or before or by any federal, provincial, state, municipal, county or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the SubsidiaryIssuer or its subsidiaries, taken as a whole, or the transaction contemplated by this Agreement;
(iii) no order, ruling or determination having the effect of ceasing or suspending trading in the Shares or prohibiting the sale of the Debentures has occurred since been issued, no proceedings for such purpose have been instituted no proceedings for such purpose are pending or, to the date hereof Actual Knowledge of the Issuer, threatened;
(iv) the Issuer has complied with respect all of its obligations under the SNCF Subscription Agreement as required in connection with the Offering of the Debentures;
(v) the Issuer has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to which be complied with or satisfied by it up to the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidentialClosing Time; and
(vvi) the representations and warranties of the Corporation Issuer contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at of the Closing Time in all material respects, with the same force and effect as if made on at and as at of the Closing Time, Time after giving effect to the transactions transaction contemplated by this Agreement; and all of those matters will in fact be true and correct as at the Time of Closing and none of the Underwriters shall have any knowledge to the contrary;
(e) all consentsthe Underwriters will have received at the Closing Time a comfort letter dated as of the Closing Date addressed to the Underwriters from the Auditors substantially in the form requested by the Underwriters, approvalsacting reasonably, permitsupdating the comfort letter or letters to be delivered to the Underwriters pursuant to Section 7, authorizations or filings as provided that such letter 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) all actions required to be made taken by or obtained on behalf of the Issuer including the passing of all requisite resolutions of the directors of the Issuer 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 authorize the execution and filing of the Preliminary Prospectus, the Final Prospectus and any Supplemental Material, to authorize the execution of the Trust Indenture, and to authorize and issue the Debentures and the Underlying Shares, in each case having the attributes contemplated by the Corporation under Applicable Securities Laws Final Prospectus;
(g) the Debentures and the Underlying Shares will have been approved for listing and posting for trading on the TSX, subject only to the Standard Listing Conditions; and
(h) the Underwriters will have received such other certificates, opinions, agreements, materials or documents, in form and substance satisfactory to the Underwriters, as the Underwriters may reasonably request.
13.2 In giving the opinions contemplated in Section 13.1, counsel may rely:
(a) as to matters of fact, to the extent appropriate in the circumstances, on certificates of the Auditors and on certificates of the Issuer executed on their respective behalf by a senior officer, acceptable to the Underwriters, acting reasonably;
(b) on the opinions of local counsel acceptable to the Underwriters and their Underwriters’ counsel (signed copies should be addressed to and delivered to the Underwriters and their counsel), acting reasonably, as to matters respecting the qualification of the Debentures for sale to the public and as to other relevant matters in the Qualifying Provinces necessary for Jurisdictions and all other relevant jurisdictions; and
(c) in the offer case of counsel to the Underwriters and sale to the extent necessary, on the opinion of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made Issuer’s counsel or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on thelocal counsel.
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Conditions of Closing. 9.1 The following are conditions precedent to the obligations of the Agent Agents to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time perform their obligations set out herein therefor, and which conditions may in Section 8 on Closing will be waived in writing in whole or in part by conditional upon the Agentfollowing:
(a) the Corporation shall Issuer will be a “reporting issuer” in British Columbia and Alberta, the Issuer’s common shares will be listed and posted for trading on the Exchange and the Issuer will not be in default of any of the requirements of applicable Securities Laws or any of the administrative policies or notices of the Exchange;
(b) the Issuer will have caused its counsel, Stikeman Elliott LLP, to deliver delivered to the Agent Agents and their legal opinions counsel a favourable opinion of the Issuer’s legal counsel dated and delivered on as of the Closing Date addressed Date, in such form as is acceptable to the Agent Agents and their legal counsel as to all legal matters reasonably requested by the Agents relating to the Issuer and the Purchaserscreation, issuance and sale of the Securities;
(c) the Issuer will have delivered to the Agents and their counsel a favourable opinion of the Issuer’s legal counsel dated as of the Closing Date, in such form and substance satisfactory as is acceptable to the Agent acting reasonably, Agents and their counsel (i) with respect to the following matters:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each due incorporation and existence of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Material Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on of its business as now conducted and to own, lease and operate its property and assetsincorporation; and (bii) as to the registered holder of the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant SharesSubsidiary; (iii) that the Broker Shares issuable upon exercise Material Subsidiary has requisite corporate power under the laws of the Broker’s Warrantsits jurisdiction of incorporation to carry on its business as presently carried on and own its properties; and (iv) the Corporate Finance Fee Shares, subject only as to the Standard Listing Conditionstitle and ownership of the Guitarra Project;
(xxvd) TSX Trust Company having been duly appointed as the warrant agent pursuant Issuer will have delivered to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent Agents and registrar for the Common Shares. In connection with such opinions, their legal counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution a certificate of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received a certificateIssuer, dated as of such date requested by the Closing Date, Agents and signed by the Chief Executive Officer chief executive officer and the Chief Financial Officer chief financial officer of the Corporation, Issuer or by such other officer(s) of officers approved by the Corporation as the Agent may agreeAgents, certifying for certain facts specified by the Agents and on behalf of to the Corporation with respect to: effect that:
(i) the constating documents of the CorporationIssuer attached to said certificate are full, true and correct copies, unamended, and in effect on the date thereof; and
(ii) the text of resolutions of the Corporation’s board directors of directors relevant the Issuer relating to the Offering Private Placement and the authorization of the other agreements attached to said certificate are full, true and transactions contemplated herein; correct copies thereof and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated have not been modified or rescinded as of the Closing Date, in form date thereof; and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as issuance of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this AgreementSecurities;
(e) all consentsthe Issuer will have delivered to the Agents and their legal counsel an incumbency certificate dated the Closing Date including specimen signatures of the chief executive officer, approvalsthe chief financial officer and any other officer of the Issuer signing this Agreement or any document delivered hereunder;
(f) the listing on the Exchange of the Shares, permitsthe Warrant Shares and the Broker Warrant Shares;
(g) the Agents will have completed its due diligence review of the Issuer and the results will have been satisfactory to the Agents, authorizations in its sole discretion;
(h) the Issuer will have delivered to the Agents and their legal counsel such other certificates, comfort letters or filings opinions of its auditors or other experts as the Agents or their legal counsel may be required reasonably request; and
(i) each representation and warranty of the Issuer which is contained in this Agreement continues to be made true and the Issuer has performed or obtained by complied with all of its covenants, agreements and obligations under this Agreement to be performed or complied with.
9.2 The Closing and the Corporation under Applicable Securities Laws in obligations of the Qualifying Provinces necessary for Issuer and the offer Agents to complete the issue and sale of the Offered SecuritiesSecurities are subject to:
(a) receipt of all required regulatory approvals for or acceptance of the Exchange for the issuance of the Securities and the listing on the Exchange of the Shares, the execution and delivery of this Agreement Warrant Shares and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Broker Warrant Shares; and
(iiib) the Broker Shares issuable upon exercise removal or revocation in full of any cease trading order or trading suspension made by any competent authority regarding the securities of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on theIssuer.
Appears in 1 contract
Conditions of Closing. The following are conditions precedent to the obligations of the Agent to complete the Closing and of the Purchasers Underwriter’s obligation to purchase the Offered Securities at Units pursuant to this Agreement (including the Closing Time, which conditions obligation to complete the Corporation covenants and agrees to use its best efforts to fulfil within purchase of the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agent:
(a) the Corporation shall have caused its counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent Initial Units and the PurchasersOver-Allotment Units, in form and substance satisfactory to the Agent acting reasonably, with respect to the following matters:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) shall be subject to the qualifications set out in following conditions having been met at the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;Closing Time:
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii1) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all Underwriter receiving favourable legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinionsopinions from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Corporation (who may rely on provide the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, Underwriter as to the qualification for distribution of the Offered Securities, Units for sale to the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items public and as to other matters governed by the laws of jurisdictions in Canada other than the province provinces in which they are qualified to practise practice and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers officers, public and exchange officials or of the Auditors or Transfer Agent), substantially to the effect set forth below, subject to customary assumptions, qualifications and limitations:
(a) the Corporation and othersis validly existing under the laws of the Province of British Columbia;
(b) the Agent shall have received a certificate, dated as of Corporation has the Closing Date, signed by the Chief Executive Officer corporate power and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) corporate capacity under the constating documents of the Corporation; Corporation to (i) carry on its business and activities and to own, lease and operate its properties and assets, as described in the Prospectus, (ii) execute and deliver this Agreement, the resolutions of the Corporation’s board of directors relevant to the Offering Warrant Indenture and the authorization of Warrant certificates, as applicable, and the other agreements Compensation Warrant Certificates and transactions contemplated herein; perform its obligations hereunder and thereunder, (iii) create, offer, issue and sell the incumbency Offered Units, (iv) create and signatures issue the Compensation Warrants, (v) create and issue the Broker Warrants and the Broker Shares (issuable upon exercise of signing officers the Compensation Warrants), (vi) create and issue the Broker Warrant Shares (issuable upon exercise of the Broker Warrants), and (vii) grant the Over-Allotment Option to the Underwriter;
(c) as to the authorized share capital of the Corporation and that the Prospectus describes, in all material respects, the attributes of the Common Shares;
(d) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of this Agreement, the Warrant Indenture and the Compensation Warrant Certificates and the performance by the Corporation of its obligations under this Agreement, the Warrant Indenture and the Compensation Warrant Certificates, and this Agreement, the Warrant Indenture and the Compensation Warrant Certificates have been duly authorized, executed and delivered by the Corporation and constitute legal, valid and binding obligations of the Corporation enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement, the Warrant Indenture and the Compensation Warrant Certificates may be limited by applicable Law;
(e) the Subsidiary (a) is validly existing under the laws of the Province of British Columbia and has the corporate power and corporate capacity to carry on its business and activities and to own, lease and operate its properties and assets, and (b) all of the issued and outstanding shares of capital of the Subsidiary are registered in the name of the Corporation;
(cf) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement Agreement, the Warrant Indenture and the consummation Compensation Warrant Certificates and the performance by the Corporation of its obligations hereunder and thereunder, including the issuance, sale and delivery of the transactions contemplated herebySecurities, as applicable, and the grant of the Over-Allotment Option in accordance with this Agreement, the Warrant Indenture and the Compensation Warrant Certificates, do not and will not result in a breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will have been made result in a breach of or obtained, as applicable constitute a default under (other than, in respect i) constating documents of the OfferingCorporation, the filing of reports required under Applicable or (ii) any applicable Securities Laws having force in the Qualifying Provinces within the prescribed time periods and the filing Province of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed British Columbia;
(g) all necessary corporate action has been taken by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the to authorize (i) the Offered Shares; signing by the Corporation of the Preliminary Prospectus and the Final Prospectus (and any Supplementary Material) and the filing thereof with the Securities Commissions and (ii) the application for the listing of the Offered Units on the Exchange;
(h) the Unit Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(i) the Unit Warrants and the Compensation Warrants have been validly created and issued as warrants of the Corporation;
(j) the Broker Warrants have been validly authorized, allotted and reserved for issuance and will, upon due exercise of the Compensation Warrants and payment of the consideration thereof, be issued as warrants of the Corporation;
(k) the Over-Allotment Warrants have been validly authorized, allotted and reserved for issuance and will, upon due exercise of the Over-Allotment Option and payment of the consideration thereof, be issued as warrants of the Corporation;
(l) the Over-Allotment Shares have been duly and validly authorized, allotted and reserved for issuance and upon due exercise of the Over-Allotment Option and payment of the consideration therefor, the Over-Allotment Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(m) the Warrant Shares; , the Over-Allotment Warrant Shares, the Broker Shares (issuable upon exercise of the Compensation Warrants) and the Broker Warrant Shares (issuable upon exercise of the Broker Warrants) have been duly and validly authorized, allotted and reserved for issuance, and upon due exercise of the Unit Warrants, the Over-Allotment Warrants, the Compensation Warrants, and the Broker Warrants, as applicable, and payment of the consideration therefor, in accordance with their respective terms, the Warrant Shares, the Over-Allotment Warrant Shares, the Broker Shares and the Broker Warrant Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(n) all necessary documents have been filed, all requisite proceedings have been taken and all necessary authorizations, approvals, permits and consents have been obtained by the Corporation under the Securities Laws in order to qualify the distribution of the Offered Units in the Qualifying Jurisdictions by or through dealers who are duly and properly registered in the appropriate category under the Securities Laws and who have complied with all relevant provisions of such Securities Laws and the terms of their registration;
(o) that the issuance of (i) the Warrant Shares issuable upon due exercise of the Warrants, (ii) the Over-Allotment Shares issuable upon due exercise of the Over- Allotment Warrants, (iii) the Broker Shares and the Broker Warrants issuable upon due exercise of the Broker’s Compensation Warrants; , and (iv) the Corporate Finance Fee Broker Warrant Shares issuable upon due exercise of the Broker Warrants will be exempt from, or will not be subject to, the prospectus requirements of applicable Canadian Securities Laws and no documents are required to be conditionally listed filed, proceedings taken or approvals, permits, consents or authorizations obtained under applicable Canadian Securities Laws to permit such issuance;
(p) the Corporation (i) is a “reporting issuer” in each of the applicable provinces, and
(ii) is not on thethe list of defaulting reporting issuers published by the Securities Commissions;
(q) Odyssey Trust Company has been duly appointed as registrar and transfer agent of the Common Shares and as of the Closing Time, will be duly appointed as warrant agent under the Warrant Indenture; and
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The following are conditions precedent to the obligations of the Agent Underwriters hereunder with respect to complete the Closing Offering will be subject to the completion by the Underwriters of a due diligence review satisfactory to the Underwriters in their sole judgment and to the satisfaction (or waiver by the Underwriters in their sole discretion) of the Purchasers to purchase the Offered Securities at the Closing Timefollowing additional conditions, as applicable, which conditions the Corporation Company covenants and agrees to use exercise its best commercially reasonable efforts to fulfil within have fulfilled on or prior to the time set out herein thereforClosing Time or any Over-Allotment Closing Date, and which conditions may be waived in writing in whole or in part by the Agentas applicable:
(a) the Corporation shall have caused its counsel, Stikeman Elliott LLP, to deliver Underwriters will receive at the Closing Time a legal opinion addressed to the Agent legal opinions Underwriters and its counsel dated and delivered on the Closing Date addressed to from the Agent and the PurchasersCompany’s counsel, ▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Agent Underwriters and its counsel, acting reasonably, with respect to the following matters, subject to such reasonable assumptions and qualifications customary with respect to transactions of this nature as may be accepted by Underwriters’ counsel:
(i) the Corporation being Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default under of Applicable Securities Laws in any of the Qualifying JurisdictionsJurisdictions which maintain such a list;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary Company is a corporation duly incorporated and validly existing under the laws of the jurisdiction in which it existsCBCA, and has all requisite corporate power power, capacity and authority to carry on its business as now conducted and to own, lease and operate its property and assets; and assets as described in the Prospectus;
(biii) as to the authorized and issued capital of the Company;
(iv) the rights, privileges, restrictions and conditions attaching to the Shares, the Warrants and the Warrant Shares are accurately summarized in all material respects in the Prospectus;
(v) the Initial Shares have been duly and validly authorized and issued and are outstanding as fully paid and non-assessable shares in the capital of the Subsidiary registered, directly or indirectly, in the name of the CorporationCompany;
(vi) the Corporation having all necessary corporate power Initial Warrants have been duly and capacity to execute validly created, authorized and deliver issued by the Transaction Documents Company;
(vii) the Over-Allotment Option has been duly and to perform its obligations hereunder validly authorized and thereunder, including to create, issue granted by the Company and sell the Offered Securities, the Corporate Finance Fee Additional Shares and the Broker’s Warrants, to issue the Warrant Shares Additional Warrants 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 have been duly and validly authorized and issued and will be outstanding as fully-paid and non-assessable shares in the capital of the Company and the Additional Warrants will have been duly and to issue validly created, authorized and issued by the Company;
(viii) the Broker Warrants have been duly and validly authorized and granted by the Company and the Compensation Shares and the Compensation Warrants issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power Broker Warrants have been duly and authority to sign validly allotted and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken reserved for issuance by the Corporation to authorize Company and, upon the execution and delivery of each exercise of the Preliminary Prospectus and Broker Warrants, the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Compensation Shares and the Corporate Finance Fee Shares having will have been duly and validly authorized and issued and will be outstanding as fully-paid and non-assessable shares in the capital of the Company and the Compensation Warrants will be duly and validly created, authorized and issued by the Company;
(ix) the Warrant Shares have been duly and validly allotted and reserved for issuance and that, at upon the Closing Time and upon payment exercise of the purchase price therefor and the issuance thereofWarrants in accordance with their terms, the Offered Shares and the Corporate Finance Fee Warrant Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants Company has all necessary corporate power and the Broker’s Warrants have been validly authorizedcapacity: (i) to execute and deliver this Agreement, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor Indenture and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid Certificates and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of perform its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) to offer, issue, sell and deliver the Warrant Shares; (iii) the Broker Initial Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of Initial Warrants comprising the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and othersInitial Units;
(b) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on the
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 7.1 The following are conditions precedent purchase and sale of the Special Notes and the Closing shall be subject to the obligations of the Agent to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agentfollowing conditions:
(a) the Corporation shall have caused its Company having obtained all requisite regulatory approvals required to be obtained by the Company in respect of the Private Placement including, without limitation, the TSE's acceptance for filing thereof, on terms mutually acceptable to the Company and the Agent, acting reasonably;
(b) the Company having complied fully with all relevant statutory and regulatory requirements required to be complied with prior to the Closing Time in connection with the Private Placement;
(c) the Company having taken all necessary corporate action to authorize and approve this Agreement, the subscription agreements pursuant to the Brokered Portion (the "Brokered Subscriptions"), the Agency Agreement, the Trust Indenture, the Warrant Indenture, the issuance of the Special Notes and the Securities, and all other matters relating thereto;
(d) the Agent and the Subscriber having received at the Closing Time favourable legal opinions of counsel to the Company addressed to the Agent, the Agent's counsel, Stikeman Elliott LLPthe Subscriber and the Subscriber's counsel, acceptable in all reasonable respects to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed counsel to the Agent and the Purchasers, in form and substance satisfactory counsel to the Agent acting reasonably, with respect Subscriber to the following matterseffect:
(i) the Corporation being a “reporting issuer”Company and its Subsidiaries are corporations validly existing and in good standing under the laws of their respective jurisdictions of incorporation, continuation or its equivalent, amalgamation and are qualified to carry on business and own their assets under the laws of each jurisdiction in each of the Qualifying Jurisdictions which they respectively carry on business and not in default under Applicable Securities Laws in the Qualifying Jurisdictionsown assets;
(ii) the Corporation being a corporation existing under Company and the laws of Subsidiaries have all requisite corporate capacity, power and authority to execute and deliver this Agreement, the Business Corporations Act (British Columbia)Agency Agreement, the Brokered Subscriptions, the Trust Indenture, and the Warrant Indenture and to perform all transactions contemplated hereby and thereby;
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws Company consists of the jurisdiction an unlimited number of common shares without par value and an unlimited number of Class A preference shares issuable in series, of which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the 32,657,939 common shares are validly issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Sharesand opinions as to the authorized and issued capital of each of the Subsidiaries;
(ixiv) each of this Agreement, the form Agency Agreement, the Brokered Subscriptions, the Trust Indenture, the Warrant Indenture and the Pledge Agreement to be entered into by the Company has been duly authorized, executed and delivered by the Company and constitutes, and the certificates representing the Special Notes, the Debentures and the Warrants have been duly authorized and, when executed and delivered by the Company, will constitute, legal, valid and binding obligations of the Company enforceable in accordance with their terms, except that;
A. the enforcement thereof may be limited by bankruptcy, insolvency and other laws affecting the enforcement of creditors' rights generally;
B. rights of indemnity, contribution and waiver of contribution thereunder may be limited under applicable law; and
C. equitable remedies, including without limitation, specific performance and injunctive relief, may be granted only in the discretion of a court of competent jurisdiction;
(v) all necessary corporate actions has been taken by the Company to authorize the creation and issuance of the Special Notes subject to the terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia)Trust Indenture;
(xvi) the Shares and Warrants to be issued upon the conversion of the Debentures have been allotted for issuance to the Subscriber and the Broker’s Warrants have been subscribers pursuant to the Brokered Subscriptions and the Shares will, when issued upon the due conversion of the Debentures in accordance with the terms of the Trust Indenture, be validly authorized, issued and createdto the holders thereof without additional payment;
(xivii) the Warrant Shares issuable to be issued upon the exercise of the Warrants having have been reserved allotted for issuance by to the Corporation andholders, from time to time, of the Warrants and such securities will, when issued upon the payment due exercise of the exercise price therefor and the issue thereof Warrants in accordance with the terms of the Warrant Indenture, being be validly issued to the holders thereof as fully paid and non-assessable Common Sharesassessable;
(xiiviii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered SecuritiesSpecial Notes has been effected in such a manner as to be exempt, either by statute or regulation or order, from the Broker’s Warrants prospectus and the Corporate Finance Fee Shares, the issuance registration requirements of the Warrant Shares upon exercise securities legislation of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective termsCanadian Jurisdictions, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion filing of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filedreports, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority certificates or undertakings required to be filed under applicable securities legislation in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities LawsCanadian Jurisdictions;
(xviix) upon meeting the Qualification and Registration Requirements the exchange or deemed exchange of the Special Notes, the Securities will not be subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus any statutory hold period under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary laws of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares Canadian Jurisdictions or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws United States federal securities laws and no prospectus or other documents being are required to be filed, proceedings taken or approvals, permits, consents consents, orders or authorizations of regulatory authorities required to be obtained under Applicable the applicable securities legislation, in connection with issuance of the Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) and the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not Securities through registrants registered under the applicable securities laws who have complied with such applicable laws (subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained control person restrictions under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined securities legislation in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time each of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities LawsCanadian Jurisdictions);
(xxiix) in the issue and delivery event that receipts for the Prospectus are not issued by the Corporation Commissions in the Qualifying Provinces Canadian Jurisdictions, then the issuance of the Broker Securities and Warrant Shares to will be exempt from the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the registration and prospectus requirements of Applicable the applicable securities laws of the Canadian Jurisdictions, and the Securities Laws and no prospectus or other documents being required Warrant Shares shall be subject to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained certain specified resale restrictions imposed under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issuethe securities laws of the Canadian Jurisdictions;
(xxiiixi) the first trade inexecution and delivery of this Agreement, or resale the Agency Agreement, the Brokered Subscriptions, the Trust Indenture and the Warrant Indenture and the performance of the transactions contemplated hereby and thereby do not and will not result in a breach of, the Broker Shares issuable upon exercise and do not create a state of facts which, after notice or lapse of time or both, will result in a breach of, and do not and will not conflict with, any of the Broker’s Warrants being exempt fromterms, conditions or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time provisions of the trade, and such trade is not a transaction or series constating documents of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws)Company;
(xxivxii) all necessary documents the forms of certificate representing the Special Notes and Warrants have been filed or posted approved and adopted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise directors of the Broker’s Warrants; Company and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditionsconform with all applicable corporate legislation and requirements;
(xxvxiii) TSX Trust Company having at the Closing Time, the Trustee will have been duly appointed by the Company as the warrant registrar and transfer agent pursuant to of the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly Shares and the Trustee will be appointed as the transfer agent trustee in respect of the Special Notes and registrar for Warrants;
(xiv) the Common Shares. In connection with Company is a "reporting issuer" in the Provinces of Ontario, British Columbia and Alberta within the meaning of the applicable securities legislation in such opinionsProvinces and is not included on the list of defaulting reporting issuers maintained by the British Columbia, Ontario and Alberta Securities Commissions;
(xv) based solely on a review of the share registers of the Subsidiaries, the Company owns 100% of the issued and outstanding shares of the Subsidiaries (except Cimarrona LLC in which the Company, through Seven Seas Petroleum Colombia Inc., holds a 62.963% membership interest) and, to the best of counsel's knowledge, the shares of the Subsidiaries held directly or indirectly by the Company are all owned free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances, claims and demands whatsoever; in giving the opinions contemplated above, counsel to the Corporation may rely on the opinions of Company and all local counsel in the Qualifying Provinces acceptable shall be entitled to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact, upon the representations, warranties and acknowledgments of the Subscriber contained in this Agreement, and of subscribers pursuant to the Brokered Subscriptions, representations, warranties and covenants of the Agent contained in the Agency Agreement, a certificate of fact on of the Company signed by an officer in a position to have knowledge of such facts and their accuracy and certificates of officers of the Corporation such public officials and othersother persons as are necessary or desirable;
(be) the Agent shall have and the Subscriber having received a certificate, dated as certificate of the Company dated the Closing Date, Date signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or Company and by such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver officer or director acceptable to the Agent a comfort letter, dated and the Subscriber certifying as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) certain matters reasonably requested by the Agent shall have received a certificate, dated as of and the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, Subscriber including certification that:
(i) the Corporation Company has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement and the Agency Agreement on its part to be complied with and satisfied at or prior up to the Closing Time in all material respectsTime;
(ii) all of the representations and warranties contained in this Agreement and in the Agency Agreement are true and correct as of the Closing Date with the same force and effect as if made at and as of the Closing Date, after giving effect to the transactions contemplated hereby;
(iii) since the date hereof, there has been no material adverse change (actual, proposed or prospective, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and its Subsidiaries on a consolidated basis;
(iv) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation Company (including the Special Notes and the Securities) has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending purposes are pending, or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authoritythreatened;
(iiiv) subsequent to the respective dates as at which information Company is given a "reporting issuer" not in default under securities laws of the Final ProspectusProvinces of Ontario, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) British Columbia and Alberta and no material change relating to the Corporation and the Subsidiary, taken as a whole, Company has occurred since the date hereof with respect to which the requisite material change report statement has not been filed and no such disclosure having been made on a confidential basis that remains confidential; andfiled;
(vvi) the representations and warranties Public Record does not contain a "misrepresentation" as defined in the applicable securities legislation of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct Canadian Jurisdictions as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreementdate of such filing;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on the
Appears in 1 contract
Sources: Private Placement Subscription Agreement (Seven Seas Petroleum Inc)
Conditions of Closing. The following are conditions precedent to the obligations of the Agent Agents and the Purchasers to complete the Offering shall be subject to the fulfilment before the Time of Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agentfollowing conditions:
(a) the Corporation and the Agents shall have caused its counselfully complied with all applicable statutory and regulatory requirements required to be complied with prior to the Time of Closing in connection with the Offering;
(b) the Agents shall be satisfied with their due diligence review of the Corporation and Kitrinor;
(c) the Corporation shall have taken all necessary corporate action to: (i) authorize and approve the Corporation Offering Documents; (ii) create and issue the Subscription Receipts; (iii) create and issue the Broker Warrants; and (iv) authorize and approve all other matters relating to the Offering;
(d) Kitrinor shall have taken all necessary corporate action to: (i) authorize and approve the Kitrinor Offering Documents; (ii) create and issue the Subscription Shares; (iii) issue the Exchanged Securities; and (iv) authorize and approve all other matters relating to the Offering;
(e) the Agents, Stikeman Elliott Kitrinor and the Purchasers shall have received at the Time of Closing favourable legal opinions of Gowling WLG (Canada) LLP, to deliver Canadian counsel to the Agent legal opinions dated and delivered on the Closing Date Corporation, and, where appropriate, counsel in other jurisdictions, addressed to Kitrinor, the Agent Agents, their counsel and the Purchasers, in form and substance satisfactory acceptable to counsel to the Agent Agents, acting reasonably, with respect substantially to the following matterseffect that:
(i) as to the Corporation being a “reporting issuer”incorporation, or its equivalent, in each organization and valid existence of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying JurisdictionsCorporation;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia)is qualified to carry on business as presently carried on and to own, lease and operate its properties;
(iii) the Corporation having the has all requisite corporate capacity, power and capacity authority to own execute and lease its property deliver the applicable Corporation Offering Documents and assets this Agreement and to conduct its Business as described in the Final Prospectusperform all transactions contemplated hereby and thereby;
(iv) the authorized and issued share capital of the Corporation;
(av) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having has been taken by the Corporation to authorize the execution creation and delivery of each issue of the Preliminary Prospectus Subscription Receipts and the Final Prospectus and any Supplementary Material Subscription Shares upon conversion thereof;
(vi) the Broker Warrants have been authorized and the filing thereof certificates representing the Broker Warrants constitute legal, valid and binding obligations of the Corporation enforceable in accordance with their terms subject to the usual qualifications;
(vii) the Broker Warrant Shares have been authorized and reserved for issue to the holders of the Broker Warrants upon the due exercise of the Broker Warrants in accordance with the Securities Commissionsprovisions thereof and upon the exercise of the Broker Warrants in accordance with the terms thereof, the Broker Warrant Shares will be validly issued as fully-paid and non-assessable Resulting Issuer Shares;
(viii) the Offered Shares execution and delivery of the Corporation Offering Documents and this Agreement and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment performance of the purchase price therefor transactions contemplated thereby (including the issue and sale of the Subscription Receipts and Broker Warrants and the issuance thereofexchange of the securities of the Corporation for the Exchanged Securities pursuant to the Business Combination), do not and will not result in a breach of, and do not create a state of facts which, after notice or lapse of time or both, will result in a breach of and do not and will not conflict with, any of the Offered Shares and terms, conditions or provisions of the Corporate Finance Fee Shares will be duly and validly issued as fully paid and nonby-assessable Common Shareslaws or certificate of incorporation of the Corporation;
(ix) the form and terms Subscription Receipts registered in the names of the Broker Warrant Certificates having been approved by Purchasers on the board of directors books of the Corporation at the Time of Closing have been issued and complying in all material respects with the requirements constitute legal, valid and binding obligations of the Business Corporations Act (British Columbia)Corporation;
(x) the issue and sale of the Subscription Receipts and Broker Warrants are exempt, either by statute or regulation or order, from the prospectus requirements of the Canadian Offering Jurisdictions, subject to the filing of all necessary reports, certificates or undertakings and fees required to be filed under the Broker’s Warrants have been validly authorized, issued and createdapplicable securities legislation of the Offering Jurisdictions;
(xi) the Warrant Shares issuable upon exercise issue of the Exchanged Securities, including for greater certainty the Subscription Shares, Broker Warrants having been reserved for issuance and Broker Warrant Shares, pursuant to the Business Combination, to the extent such Exchanged Securities are issued to Purchasers or the Agents in the Offering Jurisdictions, are exempt, either by statute or regulation or order, from the Corporation and, upon the payment prospectus requirements of the exercise price therefor and the issue thereof in accordance with the terms securities legislation of the Warrant Indenture, being validly issued as fully paid and non-assessable Common SharesCanadian Offering Jurisdictions;
(xii) each of this Agreement, the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor Subscription Receipt Agreement and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting Subscription Agreements constitute legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, terms (subject to standard qualificationsbankruptcy, insolvency or other laws affecting the rights of creditors generally, general equitable principles including that specific performance and other the availability of equitable remedies may only and the qualification that no opinion need be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating expressed as to rights to indemnity, contribution or contribution);
(xiii) TSX Trust at its office in Toronto, Ontario has been appointed as the Subscription Receipt and waiver of contribution may be unenforceableEscrow Agent under the Subscription Receipt Agreement;
(xiv) the execution first trade in the Offering Jurisdictions by the Purchasers and delivery the Agents of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Exchanged Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, from the prospectus requirements of Applicable Securities Laws applicable securities laws in the Offering Jurisdictions and no prospectus or other documents being are required to be filed, proceedings taken or approvals, permits, consents consents, orders or authorizations of regulatory authorities required to be obtained by the Corporation under Applicable Securities Laws (other than such as will have already been filed or obtained) securities laws to permit the first trade of the Exchanged Securities provided that:
(A) at the time of such issuefirst trade, Kitrinor is and has been a reporting issuer in a jurisdiction of Canada for the four months immediately preceding the trade;
(xxiB) the first such trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or is not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument NI 45-102 – Resale 102);
(C) no unusual effort is made to prepare the market or to create a demand for the Exchanged Securities that are the subject of Securities), the trade;
(D) no extraordinary commission or consideration is paid to a person or company in respect of such trade; and
(E) if the Purchaser is an insider or officer of the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental Purchaser has no reasonable grounds to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided believe that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time in default of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales applicable securities laws in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant IndentureOffering Jurisdictions; and
(xxvixv) TMX Equity Transfer Services Inc. having been duly appointed such other matters as the transfer agent Agents and registrar for the Common Sharestheir counsel may require, acting reasonably. In connection with such opinionsgiving the opinion contemplated above, counsel to the Corporation may shall be entitled, as to matters of fact, to rely on upon the representations and warranties of the Purchasers contained in the Subscription Agreements, a certificate of fact of the Corporation signed by officers of the Corporation in positions to have knowledge of such facts and their accuracy, and certificates of such public officials and other persons as are necessary or desirable;
(f) the Agents, the Corporation and the Purchasers shall have received at the Time of Closing favourable legal opinions of local I▇▇▇▇ ▇▇▇▇ LLP, Canadian counsel to Kitrinor, or where appropriate counsel in other jurisdictions, addressed to the Qualifying Provinces Agents, the Corporation, their counsel and the Purchasers, acceptable to counsel to the AgentAgents, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, substantially to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, effect that:
(i) all necessary corporate action has been taken by Kitrinor to authorize the Corporation has complied with all creation and issue of the covenants Subscription Shares and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respectsBroker Warrant Shares;
(ii) the Kitrinor Offering Documents have been authorized, executed and delivered by the Corporation and constitutes a legal, valid and binding obligations of the Corporation, enforceable in accordance with their terms (subject to bankruptcy, insolvency or other laws affecting the rights of creditors generally, general equitable principles including the availability of equitable remedies and the qualification that no opinion need be expressed as to rights to indemnity, or contribution);
(iii) the Subscription Shares have been authorized and reserved for issue to the holders of Subscription Receipts upon the deemed exercise thereof and in accordance with the terms thereof, and upon the deemed exercise of the Subscription Receipts in accordance with the terms thereof, the Subscription Shares will be validly issued as fully-paid and non-assessable Resulting Issuer Shares;
(iv) the Broker Warrant Shares have been authorized and reserved for issue to the holders of the Broker Warrants upon the exercise of the Broker Warrants in accordance with the provisions thereof and upon the exercise of the Broker Warrants in accordance with the terms thereof, the Broker Warrant Shares will be validly issued as fully paid and non-assessable Resulting Issuer Shares;
(v) the execution and delivery of the Kitrinor Offering Documents and this Agreement and the performance of the transactions contemplated thereby (including the issue of the Subscription Shares and Broker Warrant Shares and the exchange of the securities of the Corporation for the Exchanged Securities pursuant to the Business Combination), do not and will not result in a breach of, and do not create a state of facts which, after notice or lapse of time or both, will result in a breach of and do not and will not conflict with, any of the terms, conditions or provisions of the constating documents of Kitrinor; and
(vi) such other matters as the Agents and their counsel may require, acting reasonably. In giving the opinion contemplated above, counsel to Kitrinor shall be entitled, as to matters of fact, to rely upon the representations and warranties of the Purchasers contained in the Subscription Agreements, a certificate of fact of the Corporation signed by officers of the Corporation in positions to have knowledge of such facts and their accuracy, and certificates of such public officials and other persons as are necessary or desirable;
(g) no material order, ruling or determination having the effect of suspending the sale or ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has (including the Offered Securities), Kitrinor (including the Exchanged Securities) or Subco shall have been issued by any regulatory authority and continuing in effect and no proceedings for such that purpose having shall have been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authorityauthority that cannot be rectified prior to or concurrent with the completion of the Business Combination;
(iiih) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and Kitrinor shall have duly complied with all material terms, covenants and conditions of this Agreement, each in their respective part, to be complied with up to the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidentialTime of Closing; and
(vi) the representations and warranties of the Corporation and Kitrinor contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are shall be true and correct as at the Closing Time in all material respects, respects as of the Time of Closing with the same force and effect as if made on at and as at of the Time of Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) Agreement except to the extent such representations and warranties were made as of a prior date in which case they shall be true and correct in all consents, approvals, permits, authorizations or filings material respects as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on thedate.
Appears in 1 contract
Conditions of Closing. The following parties' respective obligations to consummate the Exchange are conditions precedent to the obligations of the Agent to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time as set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agent:
(a) the Corporation shall have caused its counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent acting reasonably, with respect to the following matters:forth below.
(i) The Acquiror's obligation to consummate the Corporation being a “reporting issuer”Exchange is conditioned on the occurrence of, or its equivalentwaiver of, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in following:
(A) due diligence satisfactory to the Qualifying JurisdictionsAcquiror;
(iiB) the Corporation being a corporation existing under the laws approval of the Business Corporations Act (British Columbia)Exchange by the Board of Directors of the Acquiror;
(iiiC) the Corporation having the corporate power and capacity to own and lease Acquiree shall have no more than four hundred (400) shares of its property and assets and to conduct its Business as described in the Final Prospectuscommon stock outstanding;
(ivD) Acquiree shall have retained a firm of independent auditors to conduct a review of Acquiree's financial statements for the authorized Acquiree's two most recent annual financial statements and issued share capital of other periods for which audited financial statements or a review are required under the CorporationExchange Act;
(a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(vE) the representations and warranties of the Corporation contained Acquiree set forth in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are shall be true and correct as at the Closing Time in all material respects, with respects on the same force date hereof and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this AgreementDate;
(eF) all consentsthird-party consents reasonably deemed necessary by the Acquiror shall have been received; and
(G) all documents, approvals, permits, authorizations or filings as may be exhibits and schedules required to be made or obtained delivered by the Corporation under Applicable Securities Laws in Acquiree or the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will Shareholders hereunder shall have been made delivered, or obtained, as applicable (other than, in respect of waived by the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; Acquiror.
(ii) The Acquiree's and Shareholders' obligation to consummate the Warrant Shares; Exchange is conditioned on the occurrence of, or waiver of, the following:
(iiiA) due diligence satisfactory to the Acquiree;
(B) approval of the Exchange by the (x) Board of Directors of the Acquiree and (y) Shareholders;
(C) Acquiror shall have no more than 20,000,000 shares of Common Stock outstanding.
(D) the Broker Shares issuable upon exercise representations and warranties of the Broker’s WarrantsAcquiror set forth in this Agreement shall be true and correct in all material respects on the date hereof and on the Closing Date;
(E) all third-party consents reasonably deemed necessary by the Acquiree; and
(F) all documents, exhibits and (iv) the Corporate Finance Fee Shares schedules required to be conditionally listed on thedelivered by the Acquiror hereunder shall have been delivered or waived by the Acquiree and the Shareholders.
Appears in 1 contract
Sources: Share Exchange Agreement (Western Media Group Corp)
Conditions of Closing. The following are conditions precedent to the obligations of the Agent to complete hereunder shall be conditional upon the Agent receiving, and the Agent shall have the right on the Closing Date on behalf of subscribers for the Subscription Receipts to withdraw all subscriptions delivered and of not previously withdrawn by subscribers unless the Purchasers to purchase the Offered Securities at Agent receives, on the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the AgentDate:
(a) a legal opinion of the Corporation shall have caused its Company’s counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent Agent, both acting reasonably, with respect to such matters as the following mattersAgent may reasonably request, and including, inter alia, an opinion to the effect that:
(i) the Corporation being a “reporting issuer”, or its equivalent, in Company and each of its Subsidiaries are corporations existing under the Qualifying Jurisdictions laws of their jurisdiction of incorporation and has not in default under Applicable Securities Laws in the Qualifying Jurisdictionsbeen dissolved;
(ii) the Corporation being a corporation existing under the laws Company and each of the Business Corporations Act (British Columbia);
(iii) the Corporation having the its Subsidiaries has all requisite corporate capacity and power and capacity to own and lease operate its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporationby it;
(viiii) the Corporation having Company has all necessary requisite corporate capacity and power to make the Offering and capacity to execute and deliver this Agreement, including the Transaction Documents certificates representing the Broker Options, and to perform all of its obligations hereunder and contemplated thereunder, including to create, the issue and sell of the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Common Shares issuable upon the exercise of the Warrants Broker Options;
(iv) as at the Closing Date, the authorized capital of the Company consists of an unlimited number of Common Shares, of which, 62,640,001 Common Shares are issued and to issue outstanding;
(v) the execution and delivery of this Agreement, including the certificate representing the Broker Options and the performance by the Company of its obligations thereunder, including the issue of the Common Shares issuable upon the exercise of the Broker’s WarrantsBroker Options do not and will not result in a breach of, and do not and will not conflict with, any of the terms, conditions or provisions of the constating documents of the Company or the resolutions of the directors or shareholders of the Company;
(viivi) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having has been taken by the Corporation Company to authorize the execution and delivery of this Agreement and other necessary documents, including the certificates representing the Broker Options and the completion of the Offering; this Agreement and each of such necessary documents has been duly executed and delivered by the Preliminary Prospectus Company and constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms (subject to the usual qualifications);
(vii) all necessary corporate action has been taken by the Company to authorize the allotment and issue of the Subscription Receipts, the creation, allotment and issue of the Broker Options upon exercise of any part of the Subscription Receipts and the Final Prospectus Common Shares issuable upon the due exercise of the Broker Options have been allotted and any Supplementary Material and reserved for issuance by the filing thereof Company and, when issued in accordance with the Securities Commissionsdue exercise of the Broker Options, in accordance with the terms and conditions of the certificates representing the Options, such Common Shares shall be issued as fully-paid and non-assessable shares of the Company;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants Subscription Receipts and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having Options have been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (be effected in such a manner as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be madeexempt, taken by instrument or obtained by the Corporation under Applicable Securities Lawsstatute or regulation or order, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, from the prospectus requirements of Applicable Securities Laws the Selling Jurisdictions, and no prospectus or other documents being are required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be of regulatory authorities obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) and Applicable Securities Laws of the Selling Jurisdictions to permit such issuethe issue and sale by the Company of the Subscription Receipts and the issuance of the Broker Options (subject to filing private placement forms and paying requisite filing fees);
(xxiix) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the no prospectus requirements of Applicable Securities Laws will be required and no prospectus or other documents being are required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be of regulatory authorities obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) applicable securities legislation to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces Company of the Common Shares upon the exercise of the Subscription Receipts, Warrants or Broker Shares Options in accordance with the terms and conditions of the certificates representing such securities (subject to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt fromusual filings, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issueif any);
(xxiiix) the first trade inof the Subscription Receipts, or resale ofthe Warrants, the Broker Options and the Common Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as thereunder will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer distribution unless at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws)usual qualifications are met;
(xxivxi) all necessary documents the certificates representing the Common Shares, Warrants and the Broker Options have been filed or posted approved by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise directors of the Broker’s Warrants; Corporation and (iv) the Corporate Finance Fee Sharescomply with applicable law, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indentureincluding any necessary legends; and
(xxvixii) TMX Equity Transfer Services Inc. having been duly appointed such other matters as the transfer agent and registrar Agent or counsel for the Common Shares. In connection with such opinions, counsel to the Corporation Agent may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and othersreasonably require;
(b) the Agent shall have received a certificate, favourable legal opinion dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer Date of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant local counsel to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver Company, addressed to the Agent a comfort letter, dated as of the Closing DateAgent, in form and substance satisfactory to the AgentAgent and its counsel, acting reasonably, bringing forward to a date not more than two Business Days prior with respect to the Closing Date title and/or interest of the information contained Company and any of its Subsidiaries in the comfort letter referred Eitan, Notera, ▇▇▇▇▇▇▇▇, Samuel, Yitzhak, ▇▇▇▇ and ▇▇▇▇ Licenses; and also to the effect that each of the Company’s Subsidiaries is in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificatefull compliance, dated as of the Closing Date, with the representations and warranties contained in subsections a, f, k, o, p, dd, ee, ff, hh, jj, and kk of section 5 above, mutatis mutandis. It is understood that the Company’s counsel may rely on certificates of officers of the Company on its own behalf and on behalf of the Company as to matters of fact. It is further understood that the Agent’s counsel may rely on the opinion of the Company’s counsel as to matters which specifically relate to the Company;
(c) a certificate of the Company, dated the Closing Date, addressed to the Agent and signed by the Chief Executive Officer and or the Chief Financial Officer Officer, regarding the articles and by-laws of the CorporationCompany, or such other officers the resolutions of the Corporation as the Agent may request, certifying for directors and on behalf shareholders of the CorporationCompany, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, also certifying that:
(i) the Corporation Company has complied with all of the covenants and satisfied at or prior to the Closing Time all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respectswith;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained Company set forth in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time correct, in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect as if made at such time; and
(iii) no event of the nature referred to in Sections 10.2 (b) and/or (d) has occurred or to the transactions knowledge of such officers is pending, contemplated by this Agreementor threatened;
(d) definitive certificates representing, in the aggregate, all of the Subscription Receipts, registered in such name or names as the Agent shall notify the Company in writing of not less than forty-eight (48) hours prior to the Closing Time; and
(e) all consentssuch other documentation, approvalscertificates, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws opinions or the CSE) like that Agent may reasonable require; all in a form and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares substance satisfactory to be conditionally listed on theAgent.
Appears in 1 contract
Sources: Agency Agreement (Adira Energy Ltd.)
Conditions of Closing. 13.1 The following are conditions precedent Underwriters’ obligations under this Agreement will be subject to the obligations following conditions being fulfilled which are for the exclusive benefit of the Agent to complete the Closing and Underwriters, any of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing waived, in whole or in part part, by the AgentUnderwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Corporation shall Underwriters will have caused its counselreceived a legal opinion, Stikeman Elliott LLPsubject to customary limitations, to deliver to the Agent legal opinions assumptions and qualifications, dated and delivered on as of the Closing Date addressed to the Agent and Underwriters from the Purchasers, Issuer’s Canadian counsel in form and substance satisfactory content to the Agent acting reasonably, reasonable satisfaction of the Underwriters’ counsel with respect to the following mattersfollowing:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;Issuer:
(ii1) the Corporation being is a corporation incorporated and validly existing under the laws of the Business Corporations Act (British Columbia);its jurisdiction of incorporation; and
(iii2) the Corporation having the has all necessary corporate power power, authority and capacity to own and or lease its property and assets and to conduct carry on its Business as presently conducted as described in the Final Prospectus;
(ivii) the Issuer is authorized and issued share capital to issue an unlimited number of Shares, of which, as at the Corporation;
(a) that Closing Time, such numbers of Shares as noted in the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the Canadian Final Prospectus will be validly issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Sharessecurities of the Issuer;
(ixiii) the form and terms to its knowledge, as of the Broker Warrant Certificates having been approved by Closing Time, except for the board of directors of 6.25% convertible subordinated unsecured debentures due June 30, 2019, the Corporation 6.25% convertible subordinated unsecured debentures due June 30, 2018 and complying in all material respects with the requirements of the Business Corporations Act (British Columbia)6.75% convertible subordinated unsecured debentures due June 30, 2015, no securities exchangeable or convertible into Shares will be issued and outstanding;
(xiv) all necessary corporate action has been taken by the Warrants Issuer to authorize the creation, issue, sale and delivery of the Broker’s Warrants Offered Shares, and, the Issuer having received the consideration for the issue thereof, Offered Shares have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued are outstanding as fully paid and non-assessable Common Sharesshares of the Issuer;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiiiv) all necessary corporate action having has been taken by the Corporation to authorize the execution and delivery by the Issuer of the Transaction Documents this Agreement and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrantshereunder, and the Transaction Documents having this Agreement has been duly executed and delivered by the Corporation Issuer and constituting constitutes a legal, valid and binding obligations obligation of the Corporation, Issuer enforceable against the Corporation it in accordance with their respective its terms, subject to standard qualificationsprovided that enforcement may be limited by bankruptcy, including that insolvency and other similar laws of general application affecting the enforcement of creditors’ rights generally, specific performance performance, injunctive relief and other equitable remedies may only be granted only in the discretion of a court of competent jurisdiction, jurisdiction and that the provisions thereof relating to indemnity, rights of indemnity and/or contribution and waiver of contribution set out in this Agreement may be unenforceablelimited by applicable law;
(xivvi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the execution and delivery by the Issuer of this Agreement, or the performance by the Issuer of its obligations hereunder, as applicable, and the consummation by the Issuer of the Offering, including the creation, issuance, sale and delivery of the Offered Shares, except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the execution and the delivery of this Agreement, and the Transaction Documents, the fulfilment consummation of the terms hereof and thereof by the CorporationOffering, including the issuance and sale will not:
(1) conflict with or result in or will result in a breach of or default under any of the Offered Securitiesterms, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance conditions or provisions of the Warrant Shares upon exercise constating documents of the Warrants and Issuer or the issuance resolutions of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not its directors or Equity Holders or any committee thereof; or
(as the case may be2) conflict with or result in a breach of or violation default under any applicable law, or, to its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of the terms its respective assets or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Lawsproperties;
(xvviii) each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, and, if applicable, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action by the Issuer, and each of the Canadian Preliminary Prospectus, the Canadian Amended Preliminary Prospectus and the Canadian Final Prospectus, in both the French and English languages, have been duly executed by the Issuer;
(ix) the distribution of the Offered Shares complies, in all material respects, with all laws in the Province of Quebec relating to the use of the French language in connection therewith;
(x) the Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Canadian Securities Laws of any Qualifying Jurisdiction;
(xi) all necessary documents having have been filed, all requisite proceedings having have been taken and all approvals, permits, authorizations and consents other legal requirements have been fulfilled under the laws of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation in order to qualify the Offered Shares for distribution of and sale to the Offered Securities public through persons investment dealers or brokers who are registered under Applicable Securities Laws applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of Applicable Securities Lawssuch applicable legislation;
(xvixii) the TSX has conditionally approved the listing and posting for trading of the Offered Shares subject to fulfilling the qualifications set out Standard Listing Conditions by the date required by the TSX;
(xiii) provided the Offered Shares are listed on a designated stock exchange, as defined in the Preliminary Prospectus Tax Act, the Offered Shares will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans and tax-free savings accounts;
(xiv) the Trust Company, at its principal offices in Toronto, has been duly appointed as the registrar and transfer agent with respect to the Shares; and
(xv) the directors of the Issuer are duly appointed.
(b) the Underwriters will have received a legal opinion, subject to customary limitations, assumptions and qualifications, dated as of the Closing Date addressed to the Underwriters from the Issuer’s U.S. securities counsel in form and content to the reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the Underwriters may reasonably request, including the following:
(i) The Registration Statement and the U.S. Final Prospectus under Prospectus, as of their respective effective or issue dates, appear on their face to be appropriately responsive in all material respects to the headings “Eligibility requirements of the U.S. Securities Act, except for Investment” the financial statements, financial statement schedules and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plansother financial data included or incorporated by reference in or omitted from either of them, and the statements in the Preliminary Prospectus Disclosure Package and the U.S. Final Prospectus under the headings “Eligibility for Investment” and caption “Certain Canadian United States Federal Income Tax Considerations”,” as to which such counsel expresses no opinion; the Form F-X, constitute a fair summary as of the matters discussed therein;
(xvii) no filingits date, proceeding, approval, consent or authorization is required appears on its face to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, appropriately responsive in all material respects, with respects to the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable U.S. Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respectsAct;
(ii) No consent, approval, authorization or order of, or filing, registration or qualification with, any Governmental Authority, which has not been obtained, taken or made (other than as required by any state securities laws, as to which such counsel expresses no order, ruling opinion) is required under any Applicable Law for the issuance or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities Shares or the performance by the Issuer of its obligations under this Agreement. For purposes of this opinion, the term “Governmental Authority” means any other securities executive, legislative, judicial, administrative or regulatory body of the Corporation has been issued by any regulatory authority United States of America. For purposes of this opinion, the term “Applicable Law” means those laws, rules and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties regulations of the Corporation contained United States of America, in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, each case which are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect normally applicable to the transactions of the type contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on the
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Conditions of Closing. The following are conditions precedent to the obligations of the Agent Agents to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best commercially reasonable efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the AgentAgents:
(a) the Corporation shall have caused will cause its counsel, Stikeman Elliott Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, to deliver to the Agent Agents a legal opinions opinion addressed to the Agents dated and delivered on the Closing Date addressed to the Agent and the PurchasersDate, in form and substance satisfactory to the Agent Agents acting reasonably, with respect to the following matters:
(i) as to the incorporation and valid existence of the Corporation being and as to the corporate capacity, power and authority of the Corporation to carry out its obligations under this Agreement and to issue the Offered Securities;
(ii) that the Corporation is a “reporting issuer”, or its equivalent, issuer in each of the Qualifying Jurisdictions that recognizes the concept of a reporting issuer and is not noted on a list maintained by the Canadian Securities Regulators as being in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity as to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(aiv) that the Subsidiary is a corporation existing Corporation has all necessary corporate capacity and power under the laws Laws of the jurisdiction in which it exists, and has all requisite corporate power Canada to carry on its business as now conducted presently carried on and to own, lease and operate its property Assets and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the CorporationProperties;
(viv) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and that all necessary corporate action having has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities CommissionsRegulators;
(viiivi) that necessary corporate action has been taken by the Corporation to authorize the issuance of the Offered Shares Securities and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and Broker Warrants;
(vii) that upon payment of the applicable purchase price therefor and or upon due conversion of the issuance thereofDebentures (including those issued in connection with the issue of Additional Securities upon the exercise of the Over-Allotment Option), the Offered Shares and the Corporate Finance Fee Debenture Shares will be duly and validly issued as fully paid and non-assessable Common Sharesshares of the Corporation;
(viii) that the Debentures have been duly authorized by the Corporation and upon their issuance in accordance with the terms of this Agreement and the Trust Indenture will constitute legally binding agreements of the Corporation, enforceable in accordance with the terms of the Trust Indenture;
(ix) that the form and terms of the Broker Warrant Certificates having Warrants have been approved duly authorized by the board of directors of the Corporation and complying upon their issuance in all material respects accordance with the requirements terms of this Agreement and the Warrant Indenture, will constitute legally binding agreements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorizedCorporation, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof enforceable in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xiix) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) that all necessary corporate action having has been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance thereunder and sale each of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having has been executed and delivered by the Corporation and constituting constitute a legal, valid and binding obligations obligation of the Corporation, Corporation enforceable against the Corporation it in accordance with their respective its terms, subject to standard qualificationsbankruptcy, including that specific performance insolvency, liquidation, reorganization, moratorium and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may only be granted in the discretion of a court of competent jurisdiction, jurisdiction and that the provisions thereof relating enforcement of rights to indemnity, contribution and waiver of contribution may be unenforceablelimited by applicable law;
(xivxi) that none of the execution and delivery of any of the Transaction Documents, the fulfilment of the terms hereof and thereof performance by the CorporationCorporation of its obligations hereunder or thereunder nor the issuance, including the issuance sale and sale delivery of the Offered Securities, Securities to be issued and sold by the Broker’s Warrants and Corporation at the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and Closing Time will not (as the case may be) conflict with or result in a any breach or violation of any of the terms articles of incorporation or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; , any resolutions of the directors or (iii) Applicable shareholders of the Corporation or any applicable corporate Law or Securities LawsLaws of the Qualifying Jurisdictions;
(xvxii) that all necessary documents having have been filed, all requisite proceedings having have been taken and all approvals, permits, authorizations permits and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having have been obtained by the Corporation to qualify the distribution to the public of the Offered Securities in each of the Qualifying Jurisdictions through persons investment dealers who are duly registered under Applicable applicable Securities Laws and who have complied with the relevant provisions of Applicable applicable Securities Laws;
(xvixiii) subject that the rights, privileges, restrictions and conditions attaching to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, conform in all material respects, with respects to the descriptions thereof contained in the Preliminary Prospectus and the Final Prospectus;
(xixxiv) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required that the statements set forth in the Final Prospectus under the Applicable Securities Laws in order caption “Eligibility for Investment” are accurate, subject to qualify the Offered Securities, the Broker’s Warrants limitations and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;qualifications set out therein; and
(xxxv) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having , the Debentures, the Warrants and the Underlying Shares have been duly appointed as conditionally approved for listing on the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common SharesCSE. In connection with such opinionsopinion, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces Jurisdictions acceptable to counsel to the AgentAgents, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares Securities or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall Agents receiving at the Closing Time on the Closing Date, a legal opinion to be addressed to the Agents, in form and substance acceptable to the Lead Agents, acting reasonably, from counsel to the Subsidiaries (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of officers), that: (i) each of the Subsidiaries is a corporation existing under the laws of its jurisdiction of organization, and has all requisite corporate capacity, power and authority to carry on its business as now conducted and to own, lease and operate its Assets and Properties; and (ii) all of the issued and outstanding shares of capital of each of the Subsidiaries are registered in the name of the Corporation or another Subsidiary, of which 50% of the issued and outstanding shares are registered in the name of the Corporation or another Subsidiary;
(c) the Agents will have received a regulatory opinion from the Corporation’s regulatory counsel that the Corporation and the Subsidiaries are in compliance with applicable state cannabis laws addressed to the Agents, such opinion to be in form and substance, acceptable to the Agents and their legal counsel, acting reasonably;
(d) if any Offered Securities are sold in the United States, or to or for the account or benefit of, persons in the United States or U.S. Persons, the Agents receiving, at the Closing Time on the Closing Date, a legal opinion dated the Closing Date, to be addressed to the Agents, in form and substance acceptable to the Agents, acting reasonably, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special United States legal counsel to the Corporation (who may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of officers of the Corporation), to the effect that the offer and sale in the United States of the Offered Securities is not required to be registered under the U.S. Securities Act if made in accordance with Schedule “A” to this Agreement;
(e) the Agents will have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the or Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent Agents may agree, certifying for and on behalf of the Corporation and without personal liability, to the best of the knowledge, information and belief of the persons so signing, with respect to: (i) the constating documents articles of incorporation and by-laws of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering issue and sale of the Offered Securities to be issued and sold by the Corporation and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(cf) the Corporation shall will cause the Corporation’s Auditors to deliver to the Agent Agents a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the AgentAgents, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter letters referred to in subsection 4(a)(iii5(a)(iii) hereof;
(dg) the Agent shall Agents will have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and or Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent Agents may requestagree, certifying for and on behalf of the CorporationCorporation and without personal liability, to the best of the knowledge, information and belief of the persons so signing, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied in all respects with all of the covenants and satisfied in all of respects all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respectsTime;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates certificate of the Corporation delivered pursuant to or in connection with this Agreement, hereunder are true and correct in all material respects (or, in the case of any representation or warranty containing a materiality or Material Adverse Effect qualification, in all respects) as at the Closing Time in all material respectsTime, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(eiii) the Corporation has obtained a receipt from the Principal Regulator under the Passport System and NP 11-202 evidencing that receipts have been issued by or on behalf of the Canadian Securities Regulators for the Final Prospectus and no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened under any Securities Laws of the Qualifying Jurisdictions or by any regulatory authority;
(iv) since the respective dates as of which information is given in the Final Prospectus: (A) there has been no material change (actual, anticipated, contemplated, threatened, financial or otherwise) in the assets, liabilities (contingent or otherwise), business, affairs, operations, prospects, capital or control of the Corporation and its Subsidiaries taken as a whole; and (B) no transaction has been entered into by either the Corporation or any of its Subsidiaries which is material to the Corporation on a consolidated basis, other than as disclosed in the Final Prospectus or the Supplementary Material, as the case may be; and
(v) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Securities Laws;
(h) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable applicable Securities Laws in the Qualifying Provinces Jurisdictions and the United States necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable applicable Securities Laws in the Qualifying Provinces Jurisdictions and the United States within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent Agents will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) Debentures, the Offered Shares; (ii) Warrants and the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Underlying Shares to be conditionally listed on thethe CSE, subject only to the Standard Listing Conditions;
(i) the Agents will have received, at the Closing Time, a certificate of compliance or status in respect of the Corporation and each of the Subsidiaries, which certificates will be dated no more than two Business Days prior to the Closing Date; and
(j) the Agents will have received a certificate from Odyssey Trust Company as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date.
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The following are conditions precedent Buyer's and Seller's obligations to close the obligations Transaction shall be conditioned upon (each of the Agent to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived by Buyer in writing in whole or in part by only):
7.1 Buyer obtaining the Agent:
(a) the Corporation shall have caused its counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent acting reasonably, with respect to the following matters:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each consent of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws lessors of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken leases assumed by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s WarrantsBuyer, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations consent of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject other parties to standard qualifications, including that specific performance and any other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof contracts assumed by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may relyBuyer, to the extent said consents are required;
7.2 Buyer having obtained, or having obtained the appropriate consents or approvals to the assignment of, all permits, licenses and contracts necessary to continue the operations of the Business;
7.3 Seller having maintained the Assets in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received a certificate, dated same condition as of the Closing Date, signed by the Chief Executive Officer date of this Agreement (subject to ordinary wear and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporationtear only);
(c) 7.4 Seller having conducted the Corporation shall cause Business diligently and substantially in the Auditors to deliver to the Agent a comfort letter, dated same manner as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions execution of this Agreement on its part to be complied with and satisfied at not having entered into any contract, commitment or prior to transaction not in the Closing Time in all material respectsusual and ordinary course of business;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale 7.5 The operations of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority Business not having changed in A material and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since adverse manner between the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation date of Closing;
7.6 There being no governmental investigations or suits pending or threatened with respect to the operations of the transactions Business, except as may otherwise be agreed to in 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 terms and content acceptable to Buyer;
7.10 Buyer and Seller agreeing as to the manner in which the purchase price shall be allocated among the various assets transferred pursuant to 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 hereby, will have been made or obtained, as applicable (other than, in respect that more than one half of the Offering, purchase price shall be allocated to Gicks pending patent rights.
7.11 Buyer and Seller executing a Lease for the filing of reports required under Applicable Securities Laws Gick ▇▇▇lding in the Qualifying Provinces within the prescribed time periods and the filing form attached as Exhibit "D", at an initial rate of standard documents with the CSErent of $12,049.50 per month, which documents will be filed as soon as practicable after the Closing Date andtriple net, in subject to annual C.P.I. increases.
7.12 Buyer confirming that Seller did not omit any eventknown material liabilities from its June 30, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the 1997 Balance Sheet (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on theExhibit "E").
Appears in 1 contract
Sources: Purchase and Sale Agreement (Futech Interactive Products Inc)
Conditions of Closing. 11.1 The following are conditions precedent to the obligations of the Agent to complete on each Closing will be conditional upon the Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agentfollowing:
(a) the Corporation shall have caused its counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent acting reasonably, with respect to the following matters:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having Issuer will take all necessary corporate power and capacity action in order to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to validly create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received a certificateIssuer will make all necessary filings, dated as 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 the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the CorporationApplicable Legislation;
(c) the Corporation shall cause Issuer's outstanding common shares will be listed and posted for trading on the Auditors Exchange, subject in each case only to deliver to conditions which by their nature may only be fulfilled after the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereofClosing;
(d) the Agent shall have received a certificatewill be satisfied, in its sole discretion, with the results of its investigation of the business and affairs of the Issuer;
(e) on each Closing, the Issuer will deliver to the Agent and its solicitors favourable opinions of the Issuer's solicitors dated as of the Closing Datedate of the Closing, signed as to all legal matters reasonably requested by the Chief Executive Officer and Chief Financial Officer Agent relating to the incorporation of the CorporationIssuer and its Subsidiaries, or such other officers their respective businesses and the creation, issuance and sale of the Corporation Securities, satisfactory in form and substance to the Agent; lxs\lxs01411\2\March 22, 2001
(f) on each Closing, the 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 Issuer as the Agent or its solicitors may reasonably request, certifying for satisfactory in form and on behalf substance to the Agent;
(g) each representation and warranty of the CorporationIssuer herein will continue to be true, after having made due enquiry and after having carefully examined the Final Prospectus Issuer will perform or comply with all of its covenants, agreements and any Supplementary Material, that:obligations hereunder;
(h) receipt of all required regulatory approval for or acceptance of the Private Placement;
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, Issuer will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) appointed a Chief Financial Officer and the Agent will have received copies been satisfied, in its sole discretion, with the selection of correspondence indicating that such Chief Financial Officer; and
(j) the Corporation has obtained all removal or partial revocation of any cease trading order or trading suspension made by any competent authority to the extent necessary approvals to complete the Private Placement.
11.2 The conditions set out in Subsection 11.1 are for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise sole benefit of the Broker’s Warrants; Agent and (iv) may be waived by the Corporate Finance Fee Shares to be conditionally listed on theAgent in whole or in part.
Appears in 1 contract
Sources: Private Placement Agency Agreement (Gasco Energy Inc)
Conditions of Closing. 13.1 The following are conditions precedent Underwriters’ obligations under this Agreement will be subject to the obligations following conditions being fulfilled which are for the exclusive benefit of the Agent to complete the Closing and Underwriters, any of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing waived, in whole or in part part, by the AgentUnderwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Corporation shall Underwriters will have caused its counselreceived a legal opinion, Stikeman Elliott LLPsubject to customary limitations, to deliver to the Agent legal opinions assumptions and qualifications, dated and delivered on as of the Closing Date addressed to the Agent Underwriters from the Issuer and the Purchasers, Issuer’s Canadian counsel in form and substance satisfactory content to the Agent acting reasonably, reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the following mattersUnderwriters may reasonably request, including the following:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;Issuer:
(ii1) the Corporation being is a corporation incorporated and validly existing under the laws of the Business Corporations Act (British Columbia);its jurisdiction of incorporation; and
(iii2) the Corporation having the has all necessary corporate power power, authority and capacity to own and or lease its property and assets and to conduct carry on its Business business as presently conducted as described in the Final Prospectus;
(ivii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Final Prospectus will be validly issued and issued share capital outstanding as fully paid and non-assessable securities of the CorporationIssuer;
(aiii) to its knowledge, as of the Closing Time, except for the Debentures, the 6.75% convertible subordinated unsecured debentures due June 30, 2015, and the 6.25% convertible subordinated unsecured debentures due June 30, 2018, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the execution, certification, issue, sale and delivery of the Debentures and all necessary corporate action has been taken by the Issuer to create and validly issue the Underlying Shares;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the Trust Indenture and the performance of its obligations thereunder, and this Agreement and the Trust Indenture have been duly executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against it in accordance with their respective terms, provided that the Subsidiary is a corporation existing under the enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the jurisdiction in which it existsenforcement of creditors’ rights generally, specific performance, injunctive relief and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, other equitable remedies may be granted only in the name discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement and the CorporationTrust Indenture may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the Corporation having all necessary corporate power execution and capacity to execute delivery by the Issuer of this Agreement, the Trust Indenture and deliver the Transaction Documents and to perform Debentures, or the performance by the Issuer of its obligations hereunder and or thereunder, including to createas applicable, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue consummation by the Warrant Shares issuable upon the exercise Issuer of the Warrants Offering, including the creation, issuance, sale and to issue the Broker Shares issuable upon the exercise delivery of the Broker’s WarrantsDebentures (and the Underlying Shares), except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the Corporation has execution and the necessary corporate power delivery of this Agreement and authority the Trust Indenture, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to sign and deliver its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Preliminary Prospectus Prospectus, the Final Prospectus, or, if necessary, the Supplemental Material, in both the French and English languages, and the execution and filing of each of the Preliminary Prospectus, the Final Prospectus Prospectus, or, if necessary, the Supplemental Material, in both the French and English languages, with the Securities Commissions have been duly approved and authorized by all necessary corporate action having been taken by the Corporation to authorize the execution Issuer, and delivery of each of the Preliminary Prospectus and the Final Prospectus Prospectus, in both the French and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having English languages, have been duly and validly authorized for issuance and that, at executed by the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common SharesIssuer;
(ix) the form and terms distribution of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying Debentures complies, in all material respects respects, with all laws in the requirements Province of Quebec relating to the use of the Business Corporations Act (British Columbia)French language in connection therewith;
(x) the Warrants Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Broker’s Warrants have been validly authorized, issued and createdSecurities Laws of any Qualifying Jurisdiction;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having have been filed, all requisite proceedings having have been taken and all approvals, permits, authorizations and consents other legal requirements have been fulfilled under the laws of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation in order to qualify the Debentures for distribution of and sale to the Offered Securities public through persons investment dealers or brokers who are registered under Applicable Securities Laws applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of Applicable Securities Lawssuch applicable legislation;
(xvixii) subject to the qualifications set out in form and terms of the Preliminary Prospectus certificates for the Debentures have been approved and adopted by the directors of the Issuer and comply with the terms and conditions of the Trust Indenture and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary requirements of the matters discussed thereinTSX;
(xviixiii) no filing, proceeding, approval, consent or authorization is required the TSX has conditionally approved the listing and posting for trading of the Debentures and the Underlying Shares subject to be made, taken or obtained fulfilling the Standard Listing Conditions by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance date required by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSETSX;
(xviiixiv) as long as the attributes of Debentures or the Offered Securities Underlying Shares are consistentlisted on a designated stock exchange, as defined in all material respectsthe Tax Act, the Debentures will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans (except a deferred profit sharing plan to which the Issuer, or an employer that does not deal at arm’s length with the descriptions in the Preliminary Prospectus Issuer, has made a contribution), registered disability savings plans and the Final Prospectustax-free savings accounts;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xxxv) the issue and delivery by the Corporation Trust Company, at its principal offices in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt fromToronto, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having has been duly appointed as the warrant registrar and transfer agent pursuant with respect to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having Shares and Computershare Trust Company of Canada, at its principal office in Toronto, has been duly appointed as the transfer agent and registrar for trustee under the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation Trust Indenture with respect to those items and as to other matters governed by the laws of jurisdictions other than Debentures; and
(xvi) the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers directors of the Corporation and others;Issuer are duly appointed.
(b) the Agent shall Underwriters will have received a certificatelegal opinion, dated as of the Closing DateDate and addressed to the Underwriters, from Torys LLP, Canadian counsel to the Underwriters, in form and content to the reasonable satisfaction of the Underwriters with respect to such matters as the Underwriters may reasonably request;
(c) the Underwriters will have received certificates dated the Closing Date signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and those senior officers on behalf of the Corporation Issuer, as may be acceptable to the Underwriters, acting reasonably, in form and content satisfactory to the Underwriters, acting reasonably, with respect to: to all such matters as the Underwriters may reasonably request, including the following:
(i) the constating documents of the Corporation; Issuer;
(ii) the resolutions of the Corporation’s board directors of directors the Issuer relevant to the Offering approval of the Final Prospectus and the authorization signing and filing thereof, creation, issuance and sale of the other agreements and transactions contemplated hereinDebentures; and and
(iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereofIssuer;
(d) the Agent shall Underwriters will have received a certificate, dated as of at the Closing Date, Time a certificate dated the Closing Date addressed to the Underwriters and signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other two senior officers of the Corporation as the Agent may requestIssuer, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, thatIssuer:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, Prospectus or any Supplemental Material there has not occurred been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) to the business, affairs, assets, liabilities (contingent or otherwise), capital or prospects of the Issuer or its subsidiaries, taken as a Material Adverse Effect whole, and none of the Issuer or its subsidiaries has entered into any change transaction out of the ordinary course of business which is material to the Issuer or development involving the subsidiaries, taken as a prospective Material Adverse Effectwhole, other than as disclosed in the Final Prospectus or any Supplementary Supplemental Material, as the case may be;
(ivii) there are no material change relating to actions, suits, proceedings or inquiries pending or threatened against or affecting the Corporation and Issuer or its subsidiaries at law or in equity or before or by any federal, provincial, state, municipal, county or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the SubsidiaryIssuer or its subsidiaries, taken as a whole, or the transaction contemplated by this Agreement;
(iii) no order, ruling or determination having the effect of ceasing or suspending trading in the Shares or prohibiting the sale of the Debentures has occurred since been issued, no proceedings for such purpose have been instituted no proceedings for such purpose are pending or, to the date hereof Actual Knowledge of the Issuer, threatened;
(iv) the Issuer has complied with respect all of its obligations under the SNCF Subscription Agreement as required in connection with the Offering of the Debentures;
(v) the Issuer has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to which be complied with or satisfied by it up to the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidentialClosing Time; and
(vvi) the representations and warranties of the Corporation Issuer contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at of the Closing Time in all material respects, with the same force and effect as if made on at and as at of the Closing Time, Time after giving effect to the transactions transaction contemplated by this Agreement; and all of those matters will in fact be true and correct as at the Time of Closing and none of the Underwriters shall have any knowledge to the contrary;
(e) all consentsthe Underwriters will have received at the Closing Time a comfort letter dated as of the Closing Date addressed to the Underwriters from the Auditors substantially in the form requested by the Underwriters, approvalsacting reasonably, permitsupdating the comfort letter or letters to be delivered to the Underwriters pursuant to Section 7, authorizations or filings as provided that such letter 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) all actions required to be made taken by or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale on behalf of the Offered SecuritiesIssuer including the passing of all requisite resolutions of the directors of the Issuer 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 authorize the execution and delivery filing of this Agreement the Preliminary Prospectus, the Final Prospectus and any Supplemental Material, to authorize the execution of the Trust Indenture, and to authorize and issue the Debentures and the consummation of Underlying Shares, in each case having the transactions attributes contemplated hereby, by the Final Prospectus;
(g) the Debentures and the Underlying Shares will have been made or obtainedapproved for listing and posting for trading on the TSX, as applicable subject only to the Standard Listing Conditions;
(other than, in respect of h) the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent Underwriters will have received copies of correspondence indicating at the Closing Time evidence satisfactory to the Underwriters, acting reasonably, that the Corporation has obtained all necessary approvals for syndicate of financial institutions under the Credit Facility and the two Canadian insurance companies under the Senior Secured Note Purchase Agreement have consented to the Offering; and
(i) the Offered Shares; Underwriters will have received such other certificates, opinions, agreements, materials or documents, in form and substance satisfactory to the Underwriters, as the Underwriters may reasonably request.
13.2 In giving the opinions contemplated in Section 13.1, counsel may rely:
(iia) as to matters of fact, to the Warrant Shares; (iii) extent appropriate in the Broker Shares issuable upon exercise circumstances, on certificates of the BrokerAuditors and on certificates of the Issuer executed on their respective behalf by a senior officer, acceptable to the Underwriters, acting reasonably;
(b) on the opinions of local counsel acceptable to the Underwriters and their Underwriters’ counsel (signed copies should be addressed to and delivered to the Underwriters and their counsel), acting reasonably, as to matters respecting the qualification of the Debentures for sale to the public and as to other relevant matters in the Qualifying Jurisdictions and all other relevant jurisdictions; and
(c) in the case of counsel to the Underwriters and to the extent necessary, on the opinion of the Issuer’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on thecounsel or local counsel.
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Conditions of Closing. The following obligations of the parties hereunder are conditions precedent subject to all required regulatory approvals being obtained. The Offering is conditional upon, among other things, the Corporation obtaining TSX Approval. The parties acknowledge and agree that, in the event that the TSX, as a condition of providing the TSX Approval, requires an adjustment to the subscription price per Common Share to an amount greater than Cdn.$0.207 per Common Shares, the parties agree that this Subscription Agreement shall be deemed to be automatically amended to provide that the Offering will be comprised of: (a) the Aggregate Subscription Price; divided by: (b) the greater of: (i) Cdn.$0.207 per Common Share; and (ii) the lowest subscription price per Common Share required by the TSX in order for the TSX Approval to be obtained (the “Alternate Price per Share”)(it being understood that Acerus shall use all commercially reasonable efforts to seek and obtain the TSX Conditional Approval including the subscription price per Common Share of Cdn.$0.207 per Common Share), and the TSX Approval reflective of any Alternative Price per Share shall be deemed to have satisfied the condition to obtain TSX Approval set out in this Section 5. The Subscriber acknowledges and agrees that the obligations of the Agent to complete Corporation hereunder are conditional on the accuracy of the representations and warranties of the Subscriber contained in this Subscription Agreement as of the date of this Subscription Agreement, and as of the Closing Time as if made at and as of the Purchasers to purchase the Offered Securities at the Closing Time, which and the fulfillment of the following additional conditions as soon as possible and in any event not later than the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the AgentClosing Time:
(a) the Corporation shall have caused its counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent acting reasonably, with respect to the following matters:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and othersaccepted this Subscription Agreement;
(b) payment by the Agent shall have received a certificate, dated as Subscriber of the Closing DateAggregate Subscription Price by certified cheque, signed by the Chief Executive Officer and the Chief Financial Officer of the money order, bank draft or other acceptable means in Canadian dollars payable to “Acerus Pharmaceuticals Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation”;
(c) the Corporation shall cause the Auditors to deliver Subscriber having properly completed, signed and delivered this Subscription Agreement and all applicable schedules (with payment) to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;Corporation; and
(d) if the Agent shall have received Subscriber is, or is subscribing for the account or benefit of, a certificateperson in the United States or a U.S. Person, dated as of the Closing DateSubscriber having properly completed, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on theSchedule A.
Appears in 1 contract
Conditions of Closing. 8.1 The following are conditions precedent to the obligations of the Agent Underwriters to complete the transaction contemplated herein will be conditional upon the fulfilment at or before the Closing and Time of the Purchasers to purchase the Offered Securities at the Closing Timefollowing conditions, which conditions the Corporation Company covenants and agrees to use its best efforts to fulfil within or cause to be fulfilled at or prior to the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the AgentClosing Time:
(a) the Corporation shall have caused its counselexecution and delivery of this Agreement, Stikeman Elliott LLPthe Subscription Agreements, to deliver the Special Warrant Indenture, the Share Purchase Warrant Indenture and the creation and issuance of the Special Warrants and the Underwriters’ Warrants, the creation of the Share Purchase Warrants and their issuance to the Agent legal opinions dated persons entitled thereto upon conversion of the Special Warrants, the due allotment of the Common Shares and delivered on the Closing Date addressed their issuance to the Agent persons entitled thereto upon valid exercise of the Special Warrants, the allotment of the Warrant Shares and their issuance to the persons entitled thereto upon valid exercise of the Share Purchase Warrants and the Purchasers, in form allotment of the Underwriters’ Shares and substance satisfactory their issuance to the Agent acting reasonablyUnderwriters upon valid exercise of the Underwriters’ Warrants will have been duly authorized by all necessary corporate action;
(b) except for the filing of, and obtaining of Receipts for, the Preliminary Prospectus and the Final Prospectus, any necessary consents or approvals of the Stock Exchanges and, if applicable, the Securities Commissions or other regulatory authorities with respect to the following matterscreation, sale, issuance and delivery of the Special Warrants, the creation, issuance and delivery of the Securities in the manner contemplated herein will have been obtained, including, without limitation, the conditional approval of the Stock Exchanges to list and post the Common Shares, the Warrant Shares and the Underwriters’ Shares for trading;
(c) the Underwriters will have received a certificate addressed to them and to the Substituted Purchasers, dated as of the Closing Date, signed by the President and Chief Executive Officer or by the Chief Financial Officer of the Company, or such other officer of the Company as the Underwriters may accept, certifying for and on behalf of the Company that, except as has been disclosed in the Public Record at the date thereof or otherwise disclosed in writing to the Underwriters:
(i) since February 28, 2005, there has not been any adverse material change in relation to the Company and its subsidiaries, on a consolidated basis;
(ii) since February 28, 2005, there have been no material transactions entered into by any of the Company or any of its subsidiaries other than transactions in the ordinary course of business that would not constitute a material change;
(iii) neither the Company nor any of its subsidiaries has any undisclosed contingent liability, as that term is defined according to Canadian generally accepted accounting principles, that is material to the Company and its subsidiaries, on a consolidated basis;
(iv) no event of default under any agreement or instrument pursuant to which indebtedness of the Company or any of its subsidiaries has been issued, 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 any of its subsidiaries is a party or subject to will occur as a result of the creation, sale, issue and delivery of the Securities or the entry into of this Agreement, the Subscription Agreements, the Special Warrant Indenture or the Share Purchase Warrant Indenture or the performance by the Company of its obligations hereunder or thereunder;
(v) there are no actions, suits or proceedings against the Company or its subsidiaries pending or, to the knowledge of the Company, threatened against or affecting the Company or its subsidiaries at law or in equity, before or by any court or federal, provincial, municipal or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the Company and its subsidiaries, on a consolidated basis, or which are material to the Company and its subsidiaries, on a consolidated basis;
(vi) the representations and warranties of the Company contained herein, and in the Subscription Agreements, are true and correct and all the terms and conditions relating to the Company contained herein and required to be performed and complied with by the Company at or prior to the Closing Time have been performed and complied with by the Company; and
(vii) no order ceasing or suspending trading in the securities of the Company or prohibiting the issue, sale and distribution of any of the Securities has been issued and no proceedings for such purpose are pending or, to the knowledge of the Company, threatened;
(d) the Special Warrant Indenture providing for the creation, issue and exercise of the Special Warrants, in a form and containing such terms and conditions as are acceptable to the Underwriters, acting reasonably, including the terms and conditions described above under the heading “Special Warrant Terms”, will have been entered into by and be in effect between the Company and the Trustee, as trustee for the holders of the Special Warrants, and a copy thereof will have been delivered to the Underwriters;
(e) the Share Purchase Warrant Indenture providing for the creation, issue and exercise of the Share Purchase Warrants, in a form and containing such terms and conditions as are acceptable to the Underwriters, acting reasonably, including the terms and conditions described above under the heading “Share Purchase Warrant Terms”, will have been entered into by and be in effect between the Company and the Trustee, as trustee for the holders of the Share Purchase Warrants, and a copy thereof will have been delivered to the Underwriters;
(f) a certificate representing the Underwriters’ Warrants, in a form and containing such terms and conditions as are acceptable to the Underwriters, acting reasonably, including the terms and conditions described above under the heading “Underwriters’ Fees and Expenses”, will have been issued, executed and delivered to the Underwriters;
(g) the Underwriters will have received an opinion, dated as of the Closing Date, of Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel to the Company addressed to the Underwriters and to the Substituted Purchasers with respect to all such matters as the Underwriters may reasonably request including, without limitation, the following:
(i) the Corporation being Company has been duly incorporated and is a “reporting issuer”, or its equivalent, validly existing company and is in each good standing with respect to the filing of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictionsreturns;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the Company has all necessary corporate power and capacity to own and lease its property and assets and to conduct carry on its Business business as described in the Final Prospectusnow conducted;
(iviii) the authorized and issued share capital of the CorporationCompany;
(aiv) that this Agreement, the Subsidiary is a corporation existing under Subscription Agreements, the laws Special Warrant Indenture and the Share Purchase Warrant Indenture have been duly authorized by all necessary corporate action on the part of the jurisdiction Company, have been duly executed and delivered by and on behalf of the Company and are valid and legally binding upon the Company and are enforceable in which it existsaccordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and has all requisite corporate power by the fact that rights to carry on its business as now conducted indemnity, contribution and waiver, and the ability to ownsever unenforceable terms, lease may be limited by a applicable law;
(v) none of the execution and operate its property delivery of this Agreement, the Subscription Agreements, the Special Warrant Indenture and assets; the Share Purchase Warrant Indenture, nor the fulfilment of the terms thereof, nor the creation, sale, issue and (b) as delivery of the Special Warrants, nor the creation, issue and delivery of the Underwriters’ Warrants, nor the creation of the Share Purchase Warrants and their issue and delivery to the issued and outstanding shares persons entitled thereto upon conversion of the Subsidiary registeredSpecial Warrants, directly or indirectly, in nor the name allotment of the CorporationCommon Shares and their issue to the persons entitled thereto upon valid conversion of the Special Warrants, nor the allotment of the Warrant Shares and their issue to the persons entitled thereto upon valid exercise of the Share Purchase Warrants, nor the allotment of the Underwriters’ Shares and their issue to the Underwriters upon valid exercise of the Underwriters’ Warrants, conflicts or will conflict with or results or will result in a breach of any of the terms, conditions or provisions of the constating documents of the Company, any statute or regulation having the force of law in British Columbia , Canada binding upon the Company or, so far as counsel is aware, any resolutions of its shareholders, directors or committees thereof, or any Material Agreement;
(vi) so far as counsel is aware, there is no threatened, pending or actual litigation against or involving the Corporation having all necessary corporate power and capacity to execute and deliver Company or any of its subsidiaries except as disclosed in the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrantsopinion;
(vii) the Corporation has the necessary corporate power Special Warrants and authority to sign Underwriters’ Warrants have been validly created and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken issued by the Corporation to authorize the execution Company and delivery of each are valid and binding obligations of the Preliminary Prospectus and Company enforceable against the Final Prospectus and any Supplementary Material and Company in accordance with their terms subject to the filing thereof with the Securities Commissionsqualifications as to enforceability described in paragraph (iv) above;
(viii) the Offered Share Purchase Warrants have been validly created and upon their issuance and delivery to the persons entitled thereto upon the valid exercise of the Special Warrants will become valid and binding obligations of the Company enforceable against the Company in accordance with their terms subject to the qualifications as to enforceability described in Paragraph (iv) above;
(ix) the Common Shares have been duly allotted for issue upon conversion of the Special Warrants and the Corporate Finance Fee Shares having been upon such conversion will be duly and validly authorized issued as fully paid and non- assessable Shares in the capital of the Company;
(x) the Warrant Shares have been duly allotted for issuance and that, at issue upon exercise of the Closing Time Share Purchase Warrants and upon payment such exercise will be duly and validly issued as fully paid and non- assessable Shares in the capital of the purchase price therefor Company;
(xi) the Underwriters’ Shares have been duly allotted for issue upon the exercise of the Underwriters’ Warrants and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares upon such exercise will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) Shares in the form and terms capital of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common SharesCompany;
(xii) the Broker Common Shares, Warrant Shares, and Underwriters’ Shares issuable upon exercise have been conditionally approved for listing on the Stock Exchanges, subject to the filing of the Broker’s Warrants having been reserved for issuance required documents within the time stipulated by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common SharesStock Exchanges;
(xiii) the forms of certificates representing the Special Warrants, the Share Purchase Warrants and the Underwriters’ Warrants comply with all necessary corporate action having requirements of constating documents of the Company and have been taken duly approved by the Corporation to authorize the execution and delivery directors of the Transaction Documents and Company;
(xiv) the performance Company is a reporting issuer not in default under the Securities Laws of its obligations hereunder and thereundereach of the Designated Provinces in which it is currently a reporting issuer;
(xv) no prospectus is required and, including except as have been obtained or completed, no approval or consent of or filing with any governmental authority in the Designated Provinces or with the Stock Exchanges is required in connection with the issuance and sale by the Company of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Special Warrants and the issuance of the Broker Underwriters’ Warrants, except for the filing within ten days after the Closing Date of reports in prescribed form prepared and executed in accordance with applicable Securities Laws and except as may be required by the Stock Exchanges;
(xvi) the hold period and resale restrictions applicable to the Underwriters’ Warrants and Underwriters’ Shares;
(xvii) upon the issuance of Receipts for the Final Prospectus by the Securities Commissions in each of the Designated Provinces:
A. no further prospectus or further approval of or consent of or filing with any Securities Commission or other governmental authority in the Designated Provinces or the Stock Exchanges will be required in connection with the issue and distribution of the Common Shares and Share Purchase Warrants upon the exercise or the deemed exercise of the Broker’s Warrants, Special Warrants or the issue and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance distribution of the Warrant Shares upon the exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Share Purchase Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given to others in respect of the distribution trade except for administrative or professional services or for services performed by a registered dealer; and
B. the Common Shares, except as may Share Purchase Warrants and Warrant Shares will not be subject to any statutory hold period or other resale restriction under the Securities Laws of any of the Designated Provinces and no prospectus, approval or consent under the Securities Laws of the Designated Provinces or of the Stock Exchanges, or filing with any Securities Commissions in the Designated Provinces or any Stock Exchange will be required under Applicable Securities Laws and the rules as a condition of the CSE;
(xviii) the attributes resale of the Offered Securities are consistentCommon Shares, in all material respects, with the descriptions Share Purchase Warrants or Warrant Shares (except in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions hands of any person whose holdings of securities of the Applicable Securities Laws;
(xx) Company together with those of all persons with whom that person acts in concert are sufficient to affect materially the issue and delivery by the Corporation in the Qualifying Provinces control of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtainedCompany) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined sale is made in National Instrument 45-102 – Resale compliance with or under an exemption from the registration requirements of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates , it being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided understood that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE counsel for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;Company may rely:
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, A. as to qualification for distribution matters of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may relyfact, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers the auditors of the Corporation Company and others;
(b) the Agent shall have received a certificate, dated as on certificates of the Closing Date, signed Company executed on its behalf by the Chief Executive Officer and the Chief Financial Officer a senior officer of the Corporation, or such other officer(s) Company; and
B. on the opinion of local counsel acceptable to counsel for the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the AgentUnderwriters, acting reasonably, bringing forward as to a date not more matters in the Designated Provinces other than two Business Days prior British Columbia, Alberta, Ontario and Quebec;
(h) the Underwriters shall have received an opinion from ▇▇▇▇▇▇ & Whitney LLP, special United States counsel to the Company, dated the Closing Date and addressed to the information contained in Underwriters and to the comfort letter referred Company, to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as effect that no registration of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer distribution of the CorporationSpecial Warrants, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting Share Purchase Warrants is required under the sale of the Offered U.S. Securities or any other securities of the Corporation has been issued by any regulatory authority Act, provided that all offers and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge sales of such officersSpecial Warrants, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary MaterialCommon Shares and Share Purchase Warrants, as the case may be;
(iv) no material change relating to , are made in accordance with this Agreement including the Corporation terms of Schedule A hereof, the Special Warrant Indenture and the Subsidiary, taken as a whole, has occurred since the date hereof Purchase Warrant Indenture; and provided further that such counsel need not express any opinion with respect to which the requisite material change report has not been filed and no any subsequent resale of any such disclosure having been made on a confidential basis that remains confidentialsecurities; and
(vi) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to all covenants, agreements and obligations of the transactions contemplated by this Agreement;
(e) all consentsCompany hereunder and under the Subscription Agreements, approvals, permits, authorizations or filings as may be Special Warrant Indenture and Share Purchase Warrant Indenture required to be made performed or obtained by complied with on or before the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, Closing Time will have been made so performed or obtained, as applicable (other than, in respect of complied with and all conditions required to be complied with by the Offering, Company will have been complied with. The certificates and legal opinions described above required to be delivered at the filing of reports required under Applicable Securities Laws in Closing Time will also be addressed and delivered to such persons to whom the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable Underwriters may resell any Special Warrants after the Closing Date andTime, in any event, within such deadline as may be imposed by such Securities Laws or provided they are identified at the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on theClosing Time.
Appears in 1 contract
Conditions of Closing. 13.1 The following are conditions precedent Underwriters’ obligations under this Agreement will be subject to the obligations following conditions being fulfilled which are for the exclusive benefit of the Agent to complete the Closing and Underwriters, any of the Purchasers to purchase the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing waived, in whole or in part part, by the AgentUnderwriters, in their sole discretion, pursuant to Section 14.2 hereof:
(a) the Corporation shall Underwriters will have caused its counselreceived a legal opinion, Stikeman Elliott LLPsubject to customary limitations, to deliver to the Agent legal opinions assumptions and qualifications, dated and delivered on as of the Closing Date addressed to the Agent Underwriters from the Issuer and the Purchasers, Issuer’s Canadian counsel in form and substance satisfactory content to the Agent acting reasonably, reasonable satisfaction of the Underwriters’ counsel with respect to such matters as the following mattersUnderwriters may reasonably request, including the following:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;Issuer:
(ii1) the Corporation being is a corporation incorporated and validly existing under the laws of the Business Corporations Act (British Columbia);its jurisdiction of incorporation; and
(iii2) the Corporation having the has all necessary corporate power power, authority and capacity to own and or lease its property and assets and to conduct carry on its Business business as presently conducted as described in the Final Prospectus;
(ivii) the Issuer is authorized to issue an unlimited number of Shares, of which, as at the Closing Time, such numbers of Shares as noted in the Final Prospectus will be validly issued and issued share capital outstanding as fully paid and non-assessable securities of the CorporationIssuer;
(aiii) to its knowledge, as of the Closing Time, except for the Debentures, no securities exchangeable or convertible into Shares will be issued and outstanding;
(iv) all necessary corporate action has been taken by the Issuer to authorize the execution, certification, issue, sale and delivery of the Debentures and all necessary corporate action has been taken by the Issuer to create and validly issue the Underlying Shares;
(v) all necessary corporate action has been taken to authorize the execution and delivery by the Issuer of this Agreement and the Trust Indenture and the performance of its thereunder, and this Agreement and the Trust Indenture have been duly executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against it in accordance with their respective terms, provided that the Subsidiary is a corporation existing under the enforcement may be limited by bankruptcy, insolvency and other similar laws of general application affecting the jurisdiction in which it existsenforcement of creditors’ rights generally, specific performance, injunctive relief and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, other equitable remedies may be granted only in the name discretion of a court of competent jurisdiction and that rights of indemnity and/or contribution set out in this Agreement and the CorporationTrust Indenture may be limited by applicable law;
(vi) no consent, approval, authorization or order of, and no filing, registration or recording with, any Governmental Entity is required in connection with the Corporation having all necessary corporate power execution and capacity to execute delivery by the Issuer of this Agreement, the Trust Indenture and deliver the Transaction Documents and to perform Debentures, or the performance by the Issuer of its obligations hereunder and or thereunder, including to createas applicable, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue consummation by the Warrant Shares issuable upon the exercise Issuer of the Warrants Offering, including the creation, issuance, sale and to issue the Broker Shares issuable upon the exercise delivery of the Broker’s WarrantsDebentures (and the Underlying Shares), except for consents, approvals, authorizations or orders, or filings, registrations or recordings with any Governmental Entity that have been obtained;
(vii) the Corporation has execution and the necessary corporate power delivery of this Agreement and authority the Trust Indenture, and the consummation of the Offering, will not:
(1) conflict with or result in or will result in a breach of or default under any of the terms, conditions or provisions of the constating documents of the Issuer or the resolutions of its directors or Equity Holders or any committee thereof; or
(2) conflict with or result in a breach of or default under any applicable law, or, to sign and deliver its knowledge, any judgment, order or decree of any Governmental Entity having jurisdiction over the Issuer or any of its respective assets or properties;
(viii) each of the Preliminary Prospectus and the Final Prospectus Prospectus, in both the French and all necessary corporate action having been taken by the Corporation to authorize English languages, and the execution and delivery filing of each of the Preliminary Prospectus and the Final Prospectus Prospectus, in both the French and any Supplementary Material and the filing thereof English languages, with the Securities Commissions;
(viii) Commissions have been duly approved and authorized by all necessary corporate action by the Offered Shares Issuer, and each of the Preliminary Prospectus and the Corporate Finance Fee Shares having Final Prospectus, in both the French and English languages, have been duly and validly authorized for issuance and that, at executed by the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common SharesIssuer;
(ix) the form and terms distribution of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying Debentures complies, in all material respects respects, with all laws in the requirements Province of Quebec relating to the use of the Business Corporations Act (British Columbia)French language in connection therewith;
(x) the Warrants Issuer is a reporting issuer or the equivalent thereof in each Qualifying Jurisdiction where such concept exists and is not in default under the Broker’s Warrants have been validly authorized, issued and createdSecurities Laws of any Qualifying Jurisdiction;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having have been filed, all requisite proceedings having have been taken and all approvals, permits, authorizations and consents other legal requirements have been fulfilled under the laws of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation in order to qualify the Debentures for distribution of and sale to the Offered Securities public through persons investment dealers or brokers who are registered under Applicable Securities Laws applicable legislation of the Qualifying Jurisdictions and who have complied with the relevant provisions of Applicable Securities Lawssuch applicable legislation;
(xvixii) subject to the qualifications set out in form and terms of the Preliminary Prospectus certificates for the Debentures have been approved and adopted by the directors of the Issuer and comply with the terms and conditions of the Trust Indenture and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary requirements of the matters discussed thereinTSX;
(xviixiii) no filing, proceeding, approval, consent or authorization is required the TSX has conditionally approved the listing and posting for trading of the Debentures and the Underlying Shares subject to be made, taken or obtained fulfilling the Standard Listing Conditions by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance date required by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSETSX;
(xviiixiv) as long as the attributes of Debentures or the Offered Securities Underlying Shares are consistentlisted on a designated stock exchange, as defined in all material respectsthe Tax Act, the Debentures will be qualified investments under the Tax Act for trusts governed by registered retirement savings plans, registered education savings plans, registered retirement income funds, deferred profit sharing plans (except a deferred profit sharing plan to which the Issuer, or an employer that does not deal at arm’s length with the descriptions in the Preliminary Prospectus Issuer, has made a contribution), registered disability savings plans and the Final Prospectustax-free savings accounts;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xxxv) the issue and delivery by the Corporation Trust Company, at its principal offices in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt fromToronto, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having has been duly appointed as the warrant registrar and transfer agent pursuant with respect to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having Shares and Computershare Trust Company of Canada, at its principal office in Toronto, has been duly appointed as the transfer agent and registrar for trustee under the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation Trust Indenture with respect to those items and as to other matters governed by the laws of jurisdictions other than Debentures; and
(xvi) the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers directors of the Corporation and others;Issuer are duly appointed.
(b) the Agent shall Underwriters will have received a certificatelegal opinion, dated as of the Closing DateDate and addressed to the Underwriters, from Torys LLP, Canadian counsel to the Underwriters, in form and content to the reasonable satisfaction of the Underwriters with respect to such matters as the Underwriters may reasonably request;
(c) the Underwriters will have received certificates dated the Closing Date signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and those senior officers on behalf of the Corporation Issuer, as may be acceptable to the Underwriters, acting reasonably, in form and content satisfactory to the Underwriters, acting reasonably, with respect to: to all such matters as the Underwriters may reasonably request, including the following:
(i) the constating documents of the Corporation; Issuer;
(ii) the resolutions of the Corporation’s board directors of directors the Issuer relevant to the Offering approval of the Final Prospectus and the authorization signing and filing thereof, creation, issuance and sale of the other agreements and transactions contemplated hereinDebentures; and and
(iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereofIssuer;
(d) the Agent shall Underwriters will have received a certificate, dated as of at the Closing Date, Time a certificate dated the Closing Date addressed to the Underwriters and signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other two senior officers of the Corporation as the Agent may requestIssuer, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, thatIssuer:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, Prospectus or any Supplemental Material there has not occurred been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) to the business, affairs, assets, liabilities (contingent or otherwise), capital or prospects of the Issuer or its subsidiaries, taken as a Material Adverse Effect whole, and none of the Issuer or its subsidiaries has entered into any change transaction out of the ordinary course of business which is material to the Issuer or development involving the subsidiaries, taken as a prospective Material Adverse Effectwhole, other than as disclosed in the Final Prospectus or any Supplementary Supplemental Material, as the case may be;
(ivii) there are no material change relating to actions, suits, proceedings or inquiries pending or threatened against or affecting the Corporation and Issuer or its subsidiaries at law or in equity or before or by any federal, provincial, state, municipal, county or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the SubsidiaryIssuer or its subsidiaries, taken as a whole, or the transaction contemplated by this Agreement;
(iii) no order, ruling or determination having the effect of ceasing or suspending trading in the Shares or prohibiting the sale of the Debentures has occurred since been issued, no proceedings for such purpose have been instituted no proceedings for such purpose are pending or, to the date hereof Actual Knowledge of the Issuer, threatened;
(iv) the Issuer has complied with respect all of its obligations under the SNCF Subscription Agreement as required in connection with the Offering of the Debentures;
(v) the Issuer has complied with all covenants and satisfied all terms and conditions of this Agreement on its part to which be complied with or satisfied by it up to the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidentialClosing Time; and
(vvi) the representations and warranties of the Corporation Issuer contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at of the Closing Time in all material respects, with the same force and effect as if made on at and as at of the Closing Time, Time after giving effect to the transactions transaction contemplated by this Agreement; and all of those matters will in fact be true and correct as at the Time of Closing and none of the Underwriters shall have any knowledge to the contrary;
(e) all consentsthe Underwriters will have received at the Closing Time a comfort letter dated as of the Closing Date addressed to the Underwriters from the Auditors substantially in the form requested by the Underwriters, approvalsacting reasonably, permitsupdating the comfort letter or letters to be delivered to the Underwriters pursuant to Section 7, authorizations or filings as provided that such letter 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) all actions required to be made taken by or obtained on behalf of the Issuer including the passing of all requisite resolutions of the directors of the Issuer 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 authorize the execution and filing of the Preliminary Prospectus, the Final Prospectus and any Supplemental Material, to authorize the execution of the Trust Indenture, and to authorize and issue the Debentures and the Underlying Shares, in each case having the attributes contemplated by the Corporation under Applicable Securities Laws Final Prospectus;
(g) the Debentures and the Underlying Shares will have been approved for listing and posting for trading on the TSX, subject only to the Standard Listing Conditions; and
(h) the Underwriters will have received such other certificates, opinions, agreements, materials or documents, in form and substance satisfactory to the Underwriters, as the Underwriters may reasonably request.
13.2 In giving the opinions contemplated in Section 13.1, counsel may rely:
(a) as to matters of fact, to the extent appropriate in the circumstances, on certificates of the Auditors and on certificates of the Issuer executed on their respective behalf by a senior officer, acceptable to the Underwriters, acting reasonably;
(b) on the opinions of local counsel acceptable to the Underwriters and their Underwriters’ counsel (signed copies should be addressed to and delivered to the Underwriters and their counsel), acting reasonably, as to matters respecting the qualification of the Debentures for sale to the public and as to other relevant matters in the Qualifying Provinces necessary for Jurisdictions and all other relevant jurisdictions; and
(c) in the offer case of counsel to the Underwriters and sale to the extent necessary, on the opinion of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made Issuer’s counsel or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on thelocal counsel.
Appears in 1 contract
Sources: Underwriting Agreement (Student Transportation Inc.)
Conditions of Closing. The following are conditions precedent to the obligations of the Agent Agents under this Agreement shall be subject to complete the accuracy of the representations and warranties on the part of the Corporation set forth in Section 9 hereof as of the date hereof and as of the Closing Date as though then made, to the timely performance by the Corporation of its covenants and of other obligations hereunder and to the Purchasers to purchase following additional conditions:
(1) the Offered Securities Agents receiving, at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the AgentTime of Closing:
(a) the Corporation shall have caused its counsela certificate, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on as at the Closing Date addressed and signed by the Chairman of the Board, Chief Executive Officer, President or Vice President of the Corporation and the Chief Financial Officer or Chief Accounting Officer of the Corporation, certifying for and on behalf of the Corporation and not in their personal capacity, after having made reasonable enquiries, that: (i) the representations, warranties and covenants of the Corporation set forth in Sections 6(2) and 9 of this Agreement are true and correct with the same force and effect as though expressly made on and as of the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened and no order, ruling or determination having the effect of ceasing or suspending trading in the Shares or other securities of the Corporation has been issued and no proceedings for such purpose have been instituted or threatened; and (iii) the Corporation has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Agent and Closing Date;
(b) a favourable legal opinion, dated the PurchasersClosing Date, from the Corporation’s United States counsel, Shearman & Sterling LLP, in form and substance satisfactory to the Agent acting reasonablyAgents, with respect to the following matters:
(i) no authorization, approval or other action by and no notice to or filing with, any United States federal or New York governmental authority or regulatory body, is required for the due execution and performance by the Corporation of this Agreement, except as have been obtained and are in full force and effect under the U.S. Securities Act and the rules and regulations promulgated thereunder, and as may be required under the securities or blue sky laws of any jurisdiction in the United States in connection with the offer and sale of the Shares;
(ii) the statements in the U.S. Prospectus under the caption “Certain Income Tax Considerations — Certain U.S. Federal Income Tax Information For U.S. Holders”, in each case, insofar as such statements constitute summaries of legal matters or documents referred to therein, fairly summarize in all material respects the legal matters or documents referred to therein;
(iii) the Corporation is not required to register as an “investment company” under the Investment Company Act of 1940, as amended; and
(iv) such counsel shall state in a separate letter that they do not assume any responsibility for the accuracy, completeness or fairness of any of the statements made in the Registration Statement or the U.S. Prospectus, except as set forth in its opinion letter regarding the statements under the caption “Certain Income Tax Considerations — Certain U.S. Federal Income Tax Information For U.S. Holders”, and they do not express any opinion or belief as to the financial statements and other financial or statistical data contained therein or omitted therefrom, or as to the report of management’s assessment of the effectiveness of internal control over financial reporting or the auditors’ attestation report thereon; assuming the compliance of the Canadian Prospectus, including the documents incorporated by reference therein, with the requirements of the securities laws, rules and regulations of the Qualifying Jurisdictions as interpreted and applied by the Principal Regulator each of, the Registration Statement and the U.S. Prospectus, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act and the applicable rules and regulations of the SEC thereunder. Further, nothing that came to such counsel’s attention in the course of its review has caused such counsel to believe that (i) the Registration Statement, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that (ii) the U.S. Prospectus, as of the Applicable Time or the Closing Date, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(c) a favourable legal opinion, dated the Closing Date, from the Corporation’s Canadian counsel, Torys LLP in form and substance satisfactory to the Agents, with respect to the following matters:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of Canada, with the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and authority to own, lease and operate its property properties and assets; and (b) conduct its business as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, described in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents Canadian Prospectus and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrantsunder this Agreement;
(viiii) the Corporation has the necessary corporate power Corporation’s authorized share capital consists of an unlimited number of multiple voting shares, an unlimited number of Subordinate Voting Shares and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery an unlimited number of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissionspreferred shares, issuable in series;
(viiiiii) there are no stamp, documentary or similar taxes exigible upon the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ixiv) no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body, including any insurance regulatory agency or body of Canada or the form Province of Ontario, is required for the issue and terms sale of the Broker Warrant Certificates having been approved by Shares or the board of directors consummation of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia)other transactions contemplated by this Agreement, except such consents, approvals, authorizations, registrations or qualifications as have been obtained;
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiiiv) all necessary corporate action having has been taken by the Corporation to authorize the execution and delivery of the Transaction Documents Canadian Prospectus and the performance of its obligations hereunder and thereunderfiling thereof with the Canadian Securities Commissions;
(vi) this Agreement has been duly authorized, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation Corporation, and constituting constitutes a legal, valid and binding obligations obligation of the Corporation, enforceable against the Corporation in accordance with their respective its terms, subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications, including the qualifications that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, jurisdiction and that the provisions thereof relating enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be unenforceablelimited by applicable law;
(xivvii) all necessary corporate action has been taken by the Corporation to authorize the creation, issuance, sale and delivery of the Shares to be delivered at the Time of Closing;
(viii) the execution and delivery of this Agreement and the Transaction Documents, the fulfilment performance of the terms hereof and thereof its obligations thereunder by the CorporationCorporation do not: (a) violate any provision of any law, including statute, rule or regulation as presently in effect in the issuance and sale Province of Ontario or the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance federal laws of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not Canada applicable therein; or (as the case may beb) conflict with or result in a breach contravene the articles of incorporation or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xvix) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents the TSX has conditionally approved the listing of the appropriate regulatory authority Shares to be delivered at the Time of Closing subject only to the filing of documents in each accordance with the requirements of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution TSX and notice of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Lawsissuance;
(xvix) subject upon receipt of payment for the Shares to be delivered at the qualifications set out Time of Closing in accordance with the Preliminary Prospectus terms of this Agreement, such Shares will be validly issued and the Final Prospectus under the headings “Eligibility for Investment” outstanding as fully-paid and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed thereinnon-assessable shares;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xixxi) all necessary documents have been filed, all necessary proceedings have been taken and all legal requirements necessary authorizations, approvals, permits, consents and orders have been fulfilled as required obtained under the Applicable Canadian Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution and sale in the Qualifying Provinces Jurisdictions by or through investment dealers or brokers who are duly registered under the Applicable applicable Canadian Securities Laws and who have complied comply with the relevant provisions of such laws and the Applicable Securities Lawsterms of such registration;
(xxxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX CIBC Mellon Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having has been duly appointed as the transfer agent and registrar for the Common Shares;
(xiii) the statements under the headings “Eligibility for Investment”, “Certain Income Tax Considerations — Certain Canadian Federal Income Tax Information For Canadian Residents” and “Certain Income Tax Considerations — Certain Canadian Federal Income Tax Information For U.S. Residents” in the Canadian Prospectus are true and correct;
(xiv) the attributes of the Shares conform in all material respects with the description contained in the Canadian Prospectus Supplement under the caption “Description of Subordinate Voting Shares” and in the Canadian Prospectus under the caption “Description of Subordinate Voting Shares and Preferred Shares”;
(xv) the form of the definitive share certificate representing the Shares to be delivered at the Time of Closing complies with the provisions of the CBCA and has been duly approved by the Corporation; and
(xvi) such counsel shall state in a separate letter that no facts have come to their attention which lead them to believe that the Canadian Prospectus or any Canadian Prospectus Amendment (other than (i) statements relating to the non-Canadian subsidiaries of the Company or (ii) the financial statements and other financial or statistical data and information relating to insurance reserves included or incorporated by reference therein or omitted therefrom, as to which they have not been requested to comment), at the date hereof and the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading; provided that in giving the foregoing opinion, such counsel may state that: (a) they have not verified and are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Canadian Prospectus except as set forth in paragraph (xv) above; (b) they have participated in the preparation of the Canadian Base Prospectus (not including the documents incorporated therein by reference) and in meetings with representatives of the Corporation, United States counsel for the Corporation, the independent auditors of the Corporation at which the contents of the Canadian Base Prospectus (not including the documents incorporated therein by reference) and related matters were reviewed and discussed; (c) they have participated in the preparation of the Canadian Prospectus Supplement (not including the documents incorporated therein by reference) and in meetings with representatives of the Corporation, United States counsel for the Corporation, the independent auditors of the Corporation, and with counsel to and representatives of the Agents, at which the contents of the Canadian Prospectus Supplement (not including the documents incorporated therein by reference) and related matters were reviewed and discussed; (c) a material fact in relation to the offering of the Shares by the Corporation means a fact that significantly affects, or would reasonably be expected to have a significant effect on, the market price or value of the Shares; and (d) that such counsel’s comments set out in this paragraph concerning the materiality of facts which have come to such counsel’s attention are based on their experience in practicing securities law and on the meaning of a material fact as stated above and should not be interpreted as an opinion or expert comment about financial facts or the impact of any facts on market prices or values of securities, and that such counsel are not qualified to judge the impact which any facts may have in the securities marketplace. In connection with such opinionsopinion, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces Jurisdictions acceptable to counsel to the AgentAgents, acting reasonably, as to the qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or such opinions as may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise practice and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(bd) the Agent shall have received a certificatelegal opinions from Osler, dated as of the Closing Date▇▇▇▇▇▇ & Harcourt LLP and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or with respect to such other officer(s) of the Corporation legal matters as the Agent Agents may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporationreasonably request;
(ce) the Corporation shall cause the Auditors to deliver to the Agent a an updated comfort letterletter from PricewaterhouseCoopers LLP, Chartered Accountants, dated as of the Closing Date, Date and acceptable in form and substance satisfactory to the AgentAgents, acting reasonably, bringing forward with respect to the Financial Information contained in the Canadian Prospectus and the U.S. Prospectus or any Canadian Prospectus Amendment or U.S. Registration Statement Amendment, as the case may be, including any documents incorporated therein by reference, which comfort letter shall be in addition to any comfort letters required by and addressed to securities regulatory authorities and shall be based on a review by the auditors having a cut-off date not more than two Business Days four business days prior to the Closing Date the information contained in date of the comfort letter referred to in subsection 4(a)(iii) hereof;letter; and
(df) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation matters as the Agent Agents may reasonably request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:,
(2) (i) no stop order suspending the Corporation has complied with all effectiveness of the covenants Registration Statement shall have been issued and satisfied all of the terms no proceedings for that purpose shall have been instituted or threatened; and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has shall have been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having shall have been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authoritythreatened;
(iii3) subsequent to for the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since period from the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and prior to the consummation Closing Date, there shall not have occurred any announcement of the transactions contemplated herebyany downgrading, will nor shall any announcement have been made or obtained, as applicable (other thanof any watch for possible downgrade, in respect the rating accorded the financial strength or claims paying ability of the OfferingCorporation or any of its material subsidiaries by Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business or A.M. Best Company. If any of the filing of reports conditions specified in this Section 11, when and as required under Applicable Securities Laws in to be satisfied, is not satisfied, this Agreement may be terminated by the Qualifying Provinces within Agents by notice to the prescribed Corporation at any time periods and on or prior to the filing of standard documents with the CSEClosing Date, which documents will termination shall be filed as soon as practicable after without liability on the Closing Date andpart of any other party, in any eventexcept that Sections 13, within 14 and 15 shall at all times be effective and shall survive such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on thetermination.
Appears in 1 contract
Sources: Agency Agreement (Fairfax Financial Holdings LTD/ Can)
Conditions of Closing. The following obligations of each of --------------------- the parties hereunder at each Closing Time are conditions precedent subject to the obligations accuracy of the Agent to complete the Closing representations and warranties of the Purchasers other parties hereto, to purchase the Offered Securities at performance by such other parties of their respective obligations hereunder and to the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agentfollowing further conditions:
(a) At the Corporation Initial Closing Time, no objection to the content of the Memorandum shall have caused its counselbeen expressed or threatened by the CFTC or the NFA.
(b) At the Initial Closing Time, Stikeman Elliott LLPSidley & Austin, to deliver counsel to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent General Partner and the PurchasersPartnership, shall deliver its opinion, in form and substance satisfactory to the Agent acting reasonablyparties hereto, with respect to the following matterseffect that:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each Each of the Qualifying Jurisdictions Certificate of Limited Partnership pursuant to which the Partnership has been formed and not in default under Applicable Securities Laws the Limited Partnership Agreement provides for the subscription for and sale of the Interests; all action required to be taken by the General Partner and the Partnership as a condition to the subscription for and sale of the Interests to qualified subscribers therefor has been taken; and, upon payment of the consideration therefor specified in the Qualifying Jurisdictions;accepted Subscription Agreements and Powers of Attorney, the Interests will constitute valid limited partnership interests in the Partnership and each subscriber who purchases an Interest will become a Limited Partner, subject to the requirement that each such purchaser shall have duly completed, executed and delivered to the Partnership a Subscription Agreement and Power of Attorney signature page relating to the Interest purchased by such party, that such purchaser meets all applicable suitability standards and that the representations and warranties of such purchaser in the Subscription Agreement and Power of Attorney are true and correct.
(ii) The Partnership is a limited partnership duly and validly organized pursuant to the Corporation being a corporation Certificate of Limited Partnership, the Limited Partnership Agreement and the Delaware Act, and is validly existing under the laws of the Business Corporations Act (British Columbia);State of Delaware with full power and authority to conduct the business in which it proposes to engage, as described in the Memorandum.
(iii) the Corporation having the corporate power The General Partner is duly organized, validly existing and capacity to own and lease its property and assets and to conduct its Business in good standing as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation under the laws of the State of New York and in each other jurisdiction in which it exists, and has all requisite corporate power to carry on the nature or conduct of its business as now conducted requires such qualification and the failure to own, lease and operate its property and assets; and (b) as so qualify might reasonably be expected to materially adversely affect the issued and outstanding shares of Partnership or the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and General Partner's ability to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation hereunder. The General Partner has the necessary full corporate power and authority to sign perform its obligations as described hereunder and deliver in the Preliminary Prospectus Memorandum.
(iv) Each of the General Partner (including the principals of the General Partner) and the Final Prospectus Partnership has all Federal and state governmental, regulatory and exchange approvals and licenses, and has received or made all necessary corporate action having filings and registrations with Federal and state governmental and regulatory agencies required for each of the General Partner and the Partnership to conduct its business and to act as described in the Memorandum, and to the best of their knowledge, none of such approvals, licenses or registrations have been taken rescinded or revoked.
(v) Each of the Limited Partnership Agreement, the Advisory Agreement, the Customer Agreement and this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Corporation General Partner or the Partnership, as the case may be, and assuming that such agreements are binding on the other parties hereto, each of the Limited Partnership Agreement, the Advisory Agreement, and this Agreement constitutes a valid, binding and enforceable agreement of the General Partner and/or the Partnership (as the case may be) in accordance with its terms, subject to authorize bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and except as enforceability of indemnification provisions may be limited by applicable law and the enforcement of any specific terms or remedies may be unavailable.
(vi) The execution and delivery of each this Agreement, the Limited Partnership Agreement, the Customer Agreement and the Advisory Agreement, the incurrence of the Preliminary Prospectus obligations herein and therein set forth and the Final Prospectus consummation of the transactions contemplated herein and therein and in the Memorandum will not be in contravention of any Supplementary Material of the provisions of the General Partner's certificate of incorporation or by-laws, or of the Limited Partnership Agreement, and to the filing thereof with best of their knowledge, will not constitute a breach of, or default under, any instrument by which the Securities Commissions;General Partner or the Partnership, as the case may be, is bound or any order, rule or regulation applicable to the General Partner or the Partnership of any court or any governmental body or administrative agency having jurisdiction over the General Partner or the Partnership.
(vii) There is not pending or, to the best of their knowledge, threatened any action, suit or proceeding before or by any court or other governmental or administrative body, nor have there been any such suits, claims or proceedings within the last five years, to which the General Partner (or any principal of the General Partner) or the Partnership is or was a party, or to which any of their assets is or was subject, which are required to be, but are not, disclosed in the Memorandum or which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the General Partner or the Partnership.
(viii) No authorization, approval or consent of any governmental or self-regulatory authority or agency is necessary in connection with the Offered Shares subscription for and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment sale of the purchase price therefor and Interests, except such as may be required under the issuance thereofCommodity Act, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;NFA compliance rules or applicable securities or "Blue Sky" laws.
(ix) the form The terms and terms provisions of the Broker Warrant Certificates having been approved by Limited Partnership Agreement, the board of directors of Advisory Agreement, the Corporation Customer Agreement and complying this Agreement conform in all material respects to descriptions thereof, if any, contained in the Memorandum.
(x) At the time the Memorandum and any amendments or supplements thereto were first issued, the Memorandum complied as to form in all material respects with the requirements of the Business Corporations 1933 Act and CFTC regulations. Nothing has come to their attention that would lead them to believe that the Memorandum as first issued or as subsequently issued (British Columbiaprior to the Initial Closing Time) or at the Initial Closing Time contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained therein relating to the General Partner, the Partnership or the Commodity Broker, in the light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as (A) as to the financial statements, notes thereto and other financial or statistical data set forth in the Memorandum or (B) as to the performance data set forth in the Memorandum, except that counsel shall opine, without rendering any opinion as to the accuracy of the information therein, that the capsule performance information set forth under "Performance of Futures Funds Operated or Managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Partners Inc." in the Memorandum complies as to form in all material respects with CFTC Rule Section 4.25 (a)(3);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;.
(xi) Such counsel confirm their opinion that the Warrant Shares issuable upon exercise summary of Federal income tax consequences to Limited Partners set forth under the Warrants having been reserved for issuance by caption "Certain Tax Information" in the Corporation and, upon Memorandum accurately describes the payment of material tax consequences set forth therein and that such counsel further confirm their advice to the exercise price therefor and the issue thereof General Partner explicitly set forth therein.
(xii) Assuming operation in accordance with the terms Memorandum, the Partnership at the Initial Closing Time is not an "investment company" as that term is defined in the Investment Company Act of the Warrant Indenture1940, being validly issued as fully paid and non-assessable Common Shares;amended.
(xiic) At the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation andInitial Closing Time, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares▇▇. In connection with such opinions▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel Commodity Broker, shall deliver an opinion to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, effect that:
(i) The Commodity Broker is a corporation duly organized, validly existing and in good standing as a corporation under the Corporation has complied with all laws of the covenants State of Delaware and satisfied all is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature or conduct of its business requires such qualification and in which the terms failure to so qualify might reasonably be expected to materially adversely affect the Partnership. The Commodity Broker has full corporate power and conditions of this Agreement on authority to perform its part to be complied with obligations as described hereunder and satisfied at or prior to in the Closing Time in all material respects;Memorandum.
(ii) no The Commodity Broker has all Federal and state governmental and regulatory licenses and approvals and has received or made all filings and registrations with Federal and state governmental and regulatory agencies necessary in order for the Commodity Broker to conduct its business as described in the Memorandum, and, to the best of his knowledge, none of such approvals, licenses or registrations have been rescinded or revoked.
(iii) Each of the Customer Agreement, the Consulting Agreement and this Agreement has been duly and validly authorized, executed and delivered by the Commodity Broker, and, assuming that such agreements are binding on the other parties thereto, each of this Agreement and the Consulting Agreement constitutes a valid, binding and enforceable agreement of the Commodity Broker in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and that the enforcement of specific terms or remedies may be unavailable.
(iv) The execution and delivery of the Customer Agreement, the Consulting Agreement and this Agreement, the incurrence of the obligations herein and therein set forth and the consummation of the transactions contemplated herein, therein and in the Memorandum will not be in contravention of any of the provisions of the Commodity Broker's certificate of incorporation or by-laws, or, to the best of his knowledge, constitute a breach of, or default under, any instrument known to him by which the Commodity Broker is bound or any order, ruling rule or determination regulation applicable to the Commodity Broker, of any court or any governmental body or administrative agency having jurisdiction over the Commodity Broker.
(v) Nothing has come to his attention that would lead him to believe that the Memorandum as first issued or as subsequently issued (prior to the Initial Closing Time) or at the Initial Closing Time contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained therein relating to the Commodity Broker or its principals, in the light of the circumstances under which they were made, not misleading.
(d) At the Initial Closing Time, Sidley & Austin, counsel to the Trading Advisor, shall deliver an opinion to all other parties hereto to the effect that:
(i) The Trading Advisor is a corporation duly organized, validly existing and in good standing under the laws of ceasing the state of its incorporation and is qualified to do business and is in good standing in each jurisdiction in which the nature or suspending conduct of its business requires such qualification and in which the trading failure to so qualify might reasonably be expected to materially adversely affect the Partnership, as described in the Common Shares Memorandum. The Trading Advisor has full power and authority to conduct the business in which it engages and proposes to engage.
(ii) The Trading Advisor (including its principals) has all Federal and state governmental and regulatory licenses and approvals and has received or prohibiting made all filings and registrations with Federal and state governmental and regulatory authorities necessary in order for the sale Trading Advisor to conduct its business as described in the Memorandum (including, without limitation, performance of this Agreement, the Advisory Agreement and the Consulting Agreement) and, to the best of such counsel's knowledge, none of such approvals, licenses or registrations has been rescinded or revoked.
(iii) Each of this Agreement, the Advisory Agreement and the Consulting Agreement has been duly and validly authorized, executed and delivered by the Trading Advisor, and, assuming that such agreements are binding on the other parties thereto, constitutes a valid, binding and enforceable agreement of the Offered Securities Trading Advisor, in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and except as enforceability of the indemnification provisions contained in any such agreement may be limited by applicable law and the enforcement of specific terms or remedies may be unavailable.
(iv) The execution and delivery of this Agreement, the Advisory Agreement and the Consulting Agreement, the incurrence of the obligations herein and therein set forth and the consummation of the transactions contemplated herein, therein and in the Memorandum will not be in contravention of any of the provisions of the constituent documents of the Trading Advisor, and to the best of such counsel's knowledge, will not constitute a breach of, or default under, any instrument by which the Trading Advisor is bound or any other securities order, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency having jurisdiction over the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being Trading Advisor.
(v) There is not pending or, to the knowledge best of such officerscounsel's knowledge, contemplated threatened any action, suit or threatened under any relevant securities laws (including Applicable Securities Laws) proceeding before or by any regulatory authority;
(iii) subsequent court or other governmental or administrative body, nor have there been any such suits, claims or proceedings within the last five years to which the respective dates as at which information is given in the Final ProspectusTrading Advisor, there has not occurred a Material Adverse Effect or any change of its principals, is or development involving was a prospective Material Adverse Effectparty, other than as or to which any of their assets is or was subject, which are required to be, but are not, disclosed in the Final Prospectus Memorandum or which might reasonably be expected to result in any Supplementary Materialmaterial adverse change in the condition (financial or otherwise), as the case may be;business or prospects of such Trading Advisor.
(ivvi) no Nothing has come to such counsel's attention that would lead such counsel to believe that the Memorandum as first issued or as subsequently issued (prior to the Initial Closing Time) or at the Initial Closing Time contained an untrue statement of a material change fact or omitted to state a material fact necessary in order to make the statements therein relating to the Corporation Trading Advisor or any of its principals, in the light of the circumstances under which they were made, not misleading; provided, however, that counsel need express no opinion or belief (A) as to the financial statements, notes thereto and other financial or statistical data set forth in the SubsidiaryMemorandum or (B) as to the performance data set forth in the Memorandum, taken except that such counsel shall opine, without rendering any opinion as a wholeto the accuracy of the information in such performance capsules, has occurred since that the date hereof performance capsules relating to the Trading Advisor and its principals set forth in the Memorandum comply as to form in all material respects with respect to which CFTC Rule Section 4.25(a)(3) and discussions, if any, held with the requisite material change report has not been filed Division of Trading and no such disclosure having been made on a confidential basis that remains confidential; andMarkets of the CFTC.
(ve) At the Initial Closing Time, the General Partner shall deliver a certificate to the effect that: (i) the representations and warranties of the Corporation General Partner contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, herein are true and correct as at the Closing Time in all material respects, with the same force and effect as if though expressly made on and as at the Initial Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer ; and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; General Partner has performed all covenants and agreements herein contained to be performed on its part at or prior to the Initial Closing Time. Such certificate may state that the General Partner has relied upon the Trading Advisor to provide certain information supplied by the Trading Advisor for use in the Memorandum.
(iiif) At the Broker Shares issuable upon exercise Initial Closing Time, the Trading Advisor shall deliver a report dated as of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on theInitial Closing Time which s
Appears in 1 contract
Conditions of Closing. Section 3.1 The following are conditions precedent amendment and restatement of the Original Loan Agreement pursuant to this Senior Loan Agreement is subject to the obligations of the Agent to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing Time, which following conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agentprecedent:
(a) the Corporation The Senior Agent shall have caused received copies of each of the following documents in form and content satisfactory to the Senior Agent and its counsel, Stikeman Elliott LLPduly executed by the parties thereto and, to deliver to the Agent legal opinions dated and delivered on the Closing Date addressed to the Agent and the Purchaserswhere applicable, in form and substance satisfactory to the Agent acting reasonably, with respect to the following mattersacknowledged:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;The Senior Loan Documents.
(ii) b Opinions of counsel to the Corporation being a corporation existing Borrower delivered on the Effective Date and on the Closing Date as the Senior Agent may request and that are acceptable to the Senior Agent addressing the existence and good standing of the Borrower and each Subsidiary, the authorization of the Senior Loan Documents, the enforceability of the Senior Loan Documents, and the perfection of the liens under the laws Senior Loan Documents, the absence of conflicts with law, other material agreements, and court orders, the Business Corporations Act (British Columbia);absence of litigation, and such other matters as the Senior Agent may request.
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business Certificates, dated as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws Effective Date, of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly Secretary or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery an Assistant Secretary of each of the Preliminary Prospectus Borrower and the Final Prospectus Subsidiaries (A) certifying as true, complete and any Supplementary Material and correct the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents charter and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filedBorrower and each Subsidiary, all requisite proceedings having been taken and all approvals, permits, authorizations and consents resolutions of the appropriate regulatory authority in each Board of Directors of the Qualifying Jurisdictions having been obtained Borrower and each respective Subsidiary attached thereto, (B) as to the absence of proceedings or other action for dissolution, liquidation or reorganization of the Borrower and each Subsidiary, (C) as to the incumbency of the officers of the Borrower and the Subsidiaries who shall have executed instruments, agreements, and other documents in connection with the transactions contemplated hereby or by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt PlansSenior Loan Documents, and (D) covering such other matters, and with such other attachments thereto, as the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as Senior Agent may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the traderequest, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants certificate and the Corporate Finance Fee Shares or opinions may attachments thereto shall be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, satisfactory in form and substance satisfactory to the Senior Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on the.
Appears in 1 contract
Conditions of Closing. The following are conditions precedent to the obligations of the Agent to complete the each Closing and to arrange for the purchase of the Purchasers to purchase the Offered Securities at the each Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions are to be satisfied by the Corporation at or prior to each Closing Time and may be waived in writing in whole or in part by the Agent:
(a) the Corporation shall have caused will cause its counsel, Stikeman Elliott LLP, counsel to deliver to the Agent favourable legal opinions dated and delivered on the Closing Date addressed to the Agent and the PurchasersDate, in form and substance satisfactory to the Agent, acting reasonably (it being understood that such counsel may rely to the extent appropriate in the circumstance: (i) as to matters of fact, on certificates of the Corporation executed on its behalf by a senior officer of the Corporation, on certificates of the Transfer Agent, as to its appointment as such and the issued capital of the Corporation and on certificates of the Warrant Agent as to its appointment as such; (ii) on certificates of public officials; and (iii) and such other certificates required for the legal opinion as determined by the Corporation’s legal counsel, acting reasonably), with respect to the following matters:matters (subject to usual and customary assumptions and qualifications):
(i) the Corporation being is a corporation existing under Business Corporations Act (British Columbia) and has all requisite corporate power and capacity to carry on business and to own, lease and operate properties and assets;
(ii) the Corporation has all necessary corporate capacity, power and authority: (A) to execute and deliver each of the Transaction Documents and to perform its obligations hereunder and thereunder, (B) to issue, sell and deliver the Offered Securities, (C) to grant the Over-Allotment Option, and (D) to create, issue and deliver the Agent’s Warrants;
(iii) the authorized and issued and outstanding share capital of the Corporation;
(iv) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Transaction Documents and the performance of its obligations hereunder and thereunder, and each of the Transaction Documents has been duly executed and delivered by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and subject to other standard assumptions and qualifications, including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by Applicable Law;
(v) the execution and delivery of each of the Transaction Documents and the fulfilment of the terms hereof and thereof by the Corporation and the issuance, sale and delivery of the Offered Securities to be issued and sold by the Corporation at the Closing Time, the grant of the Over-Allotment Option and the creation, issuance and delivery of the Agent’s Warrants do not and will not result in a breach of or a default under, do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or a default under, and do not and will not conflict with: (A) the constating documents of the Corporation; (B) any resolutions of the shareholders or directors (including of any committee thereof) of the Corporation; or (C) any applicable corporate law or Securities Laws;
(vi) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus, the Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Regulators;
(vii) the Unit Shares have been duly and validly created and issued as fully paid and non-assessable shares in the capital of the Corporation;
(viii) the Warrants have been duly and validly created and issued and the Warrant Shares have been reserved and authorized and allotted for issuance, and upon the payment therefor and the issue thereof upon exercise of the Warrants in accordance with the provisions of the Warrant Indenture, the Warrant Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(ix) the Agent’s Warrants have been duly and validly created and issued;
(x) the Agent’s Warrant Shares have been duly and validly created and reserved for issuance and the Agent’s Warrant Shares have been reserved and authorized and allotted for issuance and upon the payment therefor and the issue thereof upon exercise of the Agent’s Warrants in accordance with the provisions of the Agent’s Warrant Certificate, the Agent’s Warrant Shares will be duly and validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(xi) the rights, privileges, restrictions and conditions attaching to the Offered Securities, the Over-Allotment Option and the Agent’s Warrants are accurately summarized in all material respects in the Offering Documents;
(xii) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits, consents and authorizations of the Canadian Securities Regulators in each of the Qualifying Jurisdictions have been obtained by the Corporation to qualify the distribution to the public of the Offered Securities in each of the Qualifying Jurisdictions through persons who are registered under Canadian Securities Laws and to qualify the grant of the Over-Allotment Option and the issuance of the Agent’s Warrants to the Agent;
(xiii) the issuance by the Corporation of the Warrants Shares upon the due exercise of the Warrants and the issuance of the Agent’s Warrant Shares upon the due exercise of the Agent’s Warrants is exempt from, or is not subject to, the prospectus and registration requirements of Canadian Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken, or approvals, permits, consents or authorizations obtained under Canadian Securities Laws of the Qualifying Jurisdictions in connection therewith;
(xiv) the Corporation is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not in default under Applicable Securities Laws in on the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws list of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken defaulting reporting issuers maintained by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Canadian Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities LawsRegulators;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications and assumptions set out therein, the statements set forth in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings heading “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a insofar as they purport to describe the provisions of the laws referred to therein, are fair summary summaries of the matters discussed therein;
(xviixvi) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Computershare Trust Company having of Canada has been duly appointed as the warrant agent pursuant to the Warrant IndentureAgent; and
(xxvixvii) TMX Equity Transfer Services Inc. having been duly appointed such other matters as may reasonably be requested by the transfer agent and registrar for Agent no less than 48 hours prior to the Common SharesClosing Time. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel to the Corporation in the Qualifying Provinces Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution of the Offered Securities, the Broker’s Warrants grant of the Over-Allotment Option and the Corporate Finance Fee Shares issuance of the Agent’s Warrants, or opinions may be given directly by local counsel of to the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are counsel to the Corporation is qualified to practise practise, and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Corporation will cause favourable legal opinions to be delivered to the Agent shall have received a certificateby the Corporation’s counsel, dated as of and delivered on the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of regarding the Corporation’s Subsidiaries, or such other officer(s) of in form and substance satisfactory to the Corporation as the Agent may agreeAgent, certifying for and on behalf of the Corporation acting reasonably, with respect to: to the following matters:
(i) the constating documents Subsidiaries having been incorporated and existing under their respective jurisdictions of the Corporation; incorporation;
(ii) each Subsidiary having all requisite corporate power and capacity to carry on business and to own, lease and operate properties and assets; and
(i) the resolutions authorized and issued share capital of the Corporation’s board of directors relevant to the Offering each Subsidiary and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporationownership thereof;
(c) the Corporation shall will cause the Corporation’s Auditors to deliver to the Agent a comfort letter, dated as of and delivered on the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereofSection 6(b)(iv);
(d) the Corporation will deliver a certificate of the Corporation, addressed to the Agent shall have received a certificate, and dated as of the Closing Date, and signed on behalf of the Corporation, but without personal liability, by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other senior officers of the Corporation as may be acceptable to the Agent, acting reasonably, in form and substance satisfactory to the Agent, acting reasonably, certifying with respect to:
(i) the notice of articles and articles of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the issue and sale of the Offered Securities to be issued and sold by the Corporation, the grant of the Over-Allotment Option, the issuance of the Agent’s Warrants and the authorization of the Offering Documents, the Transaction Documents and the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(e) the Corporation will deliver a certificate of the Corporation, addressed to the Agent may requestand its counsel and dated the Closing Date, certifying for and signed on behalf of the Corporation, but without personal liability, by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other senior officers of the Corporation as may be acceptable to the Agent, acting reasonably, in form and substance satisfactory to the Agent, acting reasonably, certifying, to the best of the knowledge, information and belief of the Persons so signing, after having made due enquiry and after having carefully examined reviewed the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied in all material respects with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied or satisfied, other than conditions which have been waived by the Agent, at or prior to the Closing Time in all material respectsTime;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, herein are true and correct in all material respects (provided that any representations and warranties that are qualified as to materiality shall be true and correct in all respects) as at the Closing Time in all material respectsTime, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreementhereby;
(eiii) no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or any other securities of the Corporation or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened under any Securities Laws or by any regulatory authority; and
(iv) since the respective dates as of which information is given in the Final Prospectus
(A) there has been no material change (actual, anticipated, contemplated, threatened, or prospective, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise), prospects, capital or control of the Corporation (on a consolidated basis), and (B) no transaction has been entered into by the Corporation or any of its Subsidiaries which is material to the Corporation (on a consolidated basis), other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(f) the Corporation will have made and/or obtained all consentsnecessary filings, approvals, permits, authorizations consents and acceptances to or filings from, as the case may be be, the board of directors, the Securities Regulators, the CSE, and any other applicable person required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of connection with the transactions contemplated herebyby this Agreement, will have been made or obtained, as applicable (other than, in respect of on terms which are acceptable to the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods Corporation and the filing of standard documents with the CSEAgent, which documents will be filed as soon as practicable after acting reasonably, prior to the Closing Date and, in any event, within or such deadline later date as may be imposed by such permitted under the Securities Laws or Laws, it being understood that the CSEAgent will do all that is reasonably required to assist the Corporation to fulfil this condition;
(g) and the Agent will have received copies a certificate from Computershare Trust Company of correspondence indicating Canada with respect to its appointment as transfer agent and registrar of the Common Shares, and the number of Common Shares issued and outstanding as at the end of the Business Day immediately prior to the Closing Date;
(h) the Agent will have received a certificate of status or the equivalent in respect of the Corporation and each of its Subsidiaries issued by the appropriate regulatory authority in the respective jurisdictions in which the Corporation and its Subsidiaries are incorporated, dated within one Business Day prior to the Closing Date;
(i) Computershare Trust Company of Canada will be, as of the Closing Date, duly appointed as Warrant Agent under the Warrant Indenture;
(j) the Agent will have received a reporting issuer certificate or report for each of the Qualifying Jurisdictions confirming that the Corporation has obtained all necessary approvals for is a reporting issuer not in default of applicable Canadian Securities Laws, dated or retrieved within two (2) Business Days prior to the Closing Date;
(ik) to the Offered Shares; (ii) extent not previously provided, the Warrant Shares; (iii) Agent shall have received the Broker Shares issuable upon exercise of lock-up undertakings requested by the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares Agent pursuant to be conditionally listed on theSection 8(l).
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The following are conditions precedent to the obligations of the Agent to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing TimeUnderwriters under this Agreement, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the AgentLead Underwriters on behalf of the Underwriters:
(a) at the Corporation shall have caused its Time of Closing, the Corporation’s counsel, Stikeman Elliott Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver will have delivered to the Agent Underwriters and their counsel, Torys LLP, a favourable legal opinions dated and delivered on the Closing Date addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent acting reasonably, opinion with respect to all such matters as the following matters:
(i) Underwriters may reasonably request, including, without limiting the Corporation being a “reporting issuer”, or its equivalent, in each generality of the Qualifying Jurisdictions foregoing: to the existence and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that ; the Subsidiary is a corporation existing under the laws of the jurisdiction in which it existscreation, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to createauthorization, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise sale of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and Notes; that all necessary corporate action having has been taken by the directors of the Corporation to authorize validly issue the execution Conversion Preference Shares and, if and delivery of each when issued in accordance with the terms and conditions of the Preliminary Prospectus Trust Indenture and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and thatNotes, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee such Conversion Preference Shares will be duly and validly issued and outstanding as fully paid and non-assessable Common Shares;
(ix) Class A preferred shares in the form and terms capital of the Broker Warrant Certificates having been approved by Corporation; the board of directors authorization of the Corporation Trust Indenture; that the attributes of the Notes and complying the Conversion Preference Shares are consistent in all material respects with the requirements descriptions thereof in the Term Sheet; that the form of global certificate representing the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have Notes has been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance approved by the Corporation and, upon and complies with the payment provisions of the exercise price therefor Trust Indenture; that the Corporation has appointed the Trustee as trustee under the Trust Indenture; that the Trustee, at its principal office in the City of Toronto, has been duly appointed by the Corporation as the paying agent in respect of the Notes under the Trust Indenture; the enforceability of this Agreement, the Trust Indenture and the issue thereof Notes; that the execution and delivery by the Corporation of, and the performance by the Corporation of its obligations under this Agreement and the Trust Indenture, including the issuance of the Notes and the creation, allotment and issuance of the Conversion Preference Shares upon conversion of the Notes in accordance with the terms and conditions of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor Trust Indenture and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s WarrantsNotes, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (iA) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; , or (iiiB) Applicable any law of general application applicable in the Offering Jurisdictions; the Trust Indenture complies with the provisions of the CBCA; that the issuance of the Notes under the Trust Indenture complies with the provisions of the CBCA; the reporting issuer status of the Corporation under applicable Canadian Securities Laws;
(xv) all necessary documents having been filed; that no authorization, all requisite proceedings having been taken and all approvalsconsent or approval of, permitsor registration, authorizations and consents filing or recording of the appropriate Trust Indenture with, any governmental or regulatory authority in each under any applicable statute or regulation of general application of the Qualifying Jurisdictions having been obtained Province of Ontario or of Canada applicable therein is necessary in order to preserve or protect the validity or enforceability of the Trust Indenture; that the offering, issuance, sale and delivery of the Notes by the Corporation to qualify purchasers in the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied Offering Jurisdictions, in accordance with the relevant provisions terms and conditions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plansthis Agreement, and the statements issuance and delivery of the Conversion Preference Shares upon conversion of the Notes in accordance with the Preliminary Prospectus terms and conditions of the Trust Indenture and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”Notes, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
(xviii) the attributes of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt fromis, or not subject to, will be exempt from the prospectus requirements of Applicable Canadian Securities Laws and that no prospectus or will be required, no other documents being document will be required to be filed, proceedings no proceeding will be required to be taken and no approval, permit, consent, order, or approvals, permits, consents or authorizations authorization of any regulatory authority will be required to be obtained under Applicable Canadian Securities Laws (to issue and deliver the Notes to such purchasers, or to issue and deliver Conversion Preference Shares upon conversion of the Notes in accordance with the terms and conditions of the Trust Indenture and the Notes, in each case other than such as will have already been filed or obtained) to permit such issue;
(xxi) the filing of a Form 45-106F1 prescribed under NI 45-106 within 10 days after the date of issue and sale of the Notes and the payment of any fees related thereto; and that the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being Notes and any Conversion Preference Shares issued upon conversion of the Notes in accordance with the terms and conditions of the Trust Indenture and the Notes will be exempt from, or not subject to, from the prospectus requirements of Applicable Canadian Securities Laws and that no prospectus or other documents being will be required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) in order to permit such trade, provided . It is understood that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, them as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than Canada and the province in which they are qualified Provinces of Ontario, Québec, British Columbia and Alberta, (or alternatively make arrangements to practise have such opinions of local counsel directly addressed to the Underwriters), and may rely, to the extent appropriate in the circumstances, as to matters of fact fact, on certificates of officers an officer of the Corporation and others;Corporation.
(b) at the Agent shall Time of Closing, the Underwriters will have received from their counsel, Torys LLP, a certificate, legal opinion dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the AgentUnderwriters, acting reasonablywith respect to such matters as the Underwriters may reasonably require relating to the distribution of the Notes to the extent governed by the laws of Alberta, bringing forward Ontario or Québec.
(c) at the Time of Closing, the Corporation will deliver to the Underwriters a date not more than two Business Days prior to certificate dated the Closing Date addressed to the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificateUnderwriters and their counsel, dated as of the Closing Date, and signed by the Chief Executive Officer chief executive officer and Chief Financial Officer the chief financial officer of the Corporation, Corporation or such other officers of the Corporation as may be acceptable to the Agent may requestUnderwriters, acting reasonably, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, Corporation (without personal liability) that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement and the Trust Indenture on its part to be complied with and satisfied at or prior to the Closing Time in all material respectsof Closing;
(ii) the representations and warranties of the Corporation contained herein are true and correct in all material respects as of the Time of Closing with the same force and effect as if made at the Time of Closing after giving effect to the transactions contemplated hereby, except for representations and warranties which are made as of a specific date other than the Closing Date, in which case they will be true and correct in all material respects as of that date only;
(iii) no order, ruling or determination having the effect of ceasing the trading or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation Notes has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having have been instituted or being are pending or, to the best of the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may bethreatened;
(iv) since the respective dates of the Disclosure Materials, there has been no material adverse change, financial or otherwise, in the business, affairs, operations, assets, liabilities (contingent or otherwise), capital or prospects of the Corporation and its Subsidiaries (taken as a whole), or any development involving a prospective material adverse change, financial or otherwise, in the business affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation and its Subsidiaries (taken as a whole), from that disclosed in the Corporation’s Information Record or the Disclosure Materials (as they existed at the respective dates thereof);
(v) none of the documents filed with Canadian Securities Regulators forming the Corporation’s Information Record contained a misrepresentation as at the time the relevant document was filed that has not since been corrected;
(vi) the Acquisition has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Acquisition Closing Date from occurring on or prior to the Outside Date, substantially and in all material respects as contemplated in the 2.7 Announcement, and the Corporation has no reason to believe that the Acquisition will not be completed in accordance with the 2.7 Announcement on or prior to the Outside Date;
(vii) the Acquisition has not lapsed or been withdrawn;
(viii) the Separation Agreement has not been terminated or amended in any material respect, no material provision has been waived by the Corporation and no event has occurred or condition exists which, to the Corporation’s Knowledge, will prevent the Separation from occurring, substantially and in all material respects as contemplated in the Separation Agreement, and the Corporation has no reason to believe that the Separation will not be completed in accordance with the terms of the Separation Agreement;
(ix) there has not been any adverse change relating in the assigned ratings on the Notes by DBRS Limited, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings Limited which change is continuing at the Time of Closing, and no rating agency has placed any of the securities of the Corporation on credit watch or shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes; and
(x) as to such other matters of a factual nature as the Underwriters and the Underwriters’ counsel may reasonably request; and such statements shall be true in fact;
(d) the credit rating issued by ▇▇▇▇▇’▇ Investors Service, Inc. for the Notes shall be at least “Baa3” (stable), the credit rating issued by DBRS Limited for the Notes shall be at least “BBB(high) (stable)” and the credit rating issued by Fitch Ratings Limited for the Notes shall be at least “BBB (stable)” and the Corporation shall deliver to the Underwriters letters from ▇▇▇▇▇’▇ Investors Service, Inc., DBRS Limited and Fitch Ratings Limited confirming such respective ratings;
(e) the Base Indenture and the First Supplemental Indenture shall have been executed and delivered by each of the Corporation and the SubsidiaryTrust Company in form and substance satisfactory to the Underwriters, taken as a wholeacting reasonably;
(f) evidence satisfactory to the Underwriters that the Corporation’s board of directors has authorized and approved this Agreement and the Trust Indenture and, has occurred since in each case, all matters relating thereto, and have authorized and approved the date hereof with respect to which issuance of the requisite material change report has not been filed Notes and no such disclosure having been made on a confidential basis that remains confidentialall matters relating thereto; and
(vg) the representations and warranties all actions required to be taken by or on behalf of the Corporation contained in and its Subsidiaries, as applicable, including the passing of all requisite resolutions of the board of directors of the Corporation and each Subsidiary and all requisite filings with governmental authorities, will have occurred at or prior to the Time of Closing so as to:
(i) execute and deliver this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions other documents contemplated by under this Agreement;
(eii) all consentsduly and validly create, approvals, permits, authorizations or filings as may be required to be made or obtained by authorize and issue the Corporation under Applicable Securities Laws Notes in accordance with the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery provisions of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date Trust Indenture; and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares;
(iii) duly and validly create and authorize the Broker Shares issuable upon exercise issuance of the Broker’s Warrants; Conversion Preference Shares upon conversion of the Notes in accordance with the provisions of the Trust Indenture and (iv) the Corporate Finance Fee Shares to be conditionally listed on theNotes.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The following sale of the Units and the release of subscription funds from the escrow account are conditions precedent subject to the obligations accuracy of the Agent to complete the Closing representations and warranties of the Purchasers parties hereto, to purchase the Offered Securities at performance by such parties of their respective obligations hereunder and to the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agentfollowing further conditions:
(a) the Corporation The Registration Statement shall have caused its counselbecome 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, Stikeman Elliott and the CFTC shall have filed the Prospectus as a Disclosure Document without a finding of further deficiencies.
(b) At the Initial Closing Time, either Sidley Austin Brown & Wood LLP, to deliver counsel to the Agent legal opinions dated and delivered on the Closing Date addressed Managing Owner, Richa▇▇▇, ▇▇▇▇▇▇ & F▇▇▇▇r, P.A., Delaware counsel to the Agent and Mana▇▇▇▇ ▇▇▇▇▇, ▇▇ _____________, Connecticut counsel to the PurchasersManaging Owner, shall deliver its opinion, in form and substance satisfactory to the Agent acting reasonablyparties hereto, with respect to the following matterseffect that:
(i) The Certificate of Trust pursuant to which the Corporation being a “reporting issuer”, or its equivalent, in each Trust has been formed and the Trust Agreement of the Qualifying Jurisdictions Trust each provides for the subscription for and not in default under Applicable Securities Laws sale of the Units; all action required to be taken by the Managing Owner and the Trust 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 Qualifying Jurisdictions;accepted Subscription Agreements and Powers of Attorney, the Units will constitute valid units of beneficial interest in the Trust and each subscriber who purchases Units will become a Unitholder with the same limitation on personal liability as a stockholder in a private corporation for profit under the laws of the State of Delaware, subject to the requirement that each such purchaser shall have duly completed, executed and delivered to the Managing Owner a Subscription Agreement and Power of Attorney relating to the Units purchased by such party, that such purchaser meets all applicable suitability standards and that the representations and warranties of such purchaser in the Subscription Agreement and Power of Attorney are true and correct.
(ii) The Trust is a statutory trust duly and validly organized pursuant to the Corporation being a corporation Certificate of Trust, the Trust Agreement and the Delaware Act, and is validly existing under the laws of the Business Corporations Act (British Columbia);State of Delaware with full power and authority to conduct the business in which it proposes to engage as described in the Prospectus.
(iii) the Corporation having the corporate power The Managing Owner is duly organized, validly existing and capacity to own and lease its property and assets and to conduct its Business in good standing as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the State of Connecticut and is in good standing and qualified to do business in each other jurisdiction in which it exists, and has all requisite corporate power the failure to carry on its business as now conducted and so qualify might reasonably be expected to own, lease and operate its property and assets; and (b) as result in material adverse consequences to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation Trust. The Managing Owner has the necessary full corporate power and authority to sign and deliver perform its obligations as described in the Preliminary Registration Statement, the Prospectus and herein.
(iv) The Managing Owner (including the Final Prospectus Managing Owner's principals) and the Trust each has all federal and state governmental and all regulatory and self-regulatory approvals and licenses, and has received or made all filings and registrations with federal and state governmental and all regulatory and self-regulatory agencies necessary corporate action having in order for the Managing Owner and the Trust, respectively, to conduct their respective businesses as described in the Registration Statement and Prospectus, and, to the best of their knowledge, none of such approvals, licenses or registrations have been taken rescinded or revoked.
(v) Each of the Trust Agreement, the Escrow Agreement, the Advisory Agreements and this Agreement has been duly authorized, executed and delivered by or on behalf of the Corporation Managing Owner and/or the Trust, as the case may be, and assuming that such agreements are binding on the other parties thereto and hereto, each of the Trust Agreement, the Escrow Agreement, the Customer Agreements, the Advisory Agreements and this Agreement constitutes a valid, binding and enforceable agreement of the Managing Owner and/or the Trust, as the case may be, in each case in accordance with its terms, subject to authorize bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and except as enforce-ability of indemnification provisions may be limited by applicable law and the enforcement of any specific terms or remedies may be unavailable.
(vi) The execution and delivery of each this Agreement, the Trust Agreement, the Escrow Agreement, and the Advisory Agreements, and the incurrence of the Preliminary obligations herein, therein and in the Prospectus set forth and the Final consummation of the transactions contemplated herein, therein and in the Prospectus and will not be in contravention of any Supplementary Material and of the filing thereof with provisions of the Securities Commissions;Managing Owner's certificate of incorporation or by-laws and, to the best of their knowledge, will not constitute a breach of, or default under, any instrument by which the Managing Owner or the Trust is bound or any order, rule or regulation applicable to the Man-aging Owner or the Trust of any court or any governmental body or administrative agency having jurisdiction over the Managing Owner or the Trust.
(vii) To the best of their knowledge (without having made any particular inquiry or docket search), there are no actions, claims or proceedings pending or threatened in any court or before or by any governmental or administrative agency or regulatory or self-regulatory body, nor have there been any such suits, claims or proceedings within the last five years, to which the Managing Owner (or any principal of the Managing Owner) or the Trust is or was a party, or to which any of their assets is or was subject, which are required to be, but are not, disclosed in the Registration Statement or Prospectus or which might reasonably be expected to result in any material adverse change in the condition (financial or other-wise), business or prospects of the Managing Owner or the Trust.
(viii) No authorization, approval or consent of any governmental or self-regulatory authority or agency is necessary in connection with the Offered Shares subscription for and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment sale of the purchase price therefor and Units, except such as may be required under the issuance thereof1933 Act, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;Commodity Act, NFA compliance rules, NASD rules or applicable securities or "Blue Sky" laws.
(ix) The information in the form Prospectus under the caption ["Federal Income Tax Aspects,"] to the extent that such information constitutes matters of law or legal conclusions, has been reviewed by them and terms is correct in all material respects, insofar as it relates to the income tax consequences to the Trust and to the federal income tax consequences of an investment in the Trust by U.S. individual taxpayers.
(x) The Registration Statement is effective under the 1933 Act and no proceeding for a stop order is pending or, to the best of their knowledge, threatened under Section 8(d) or Section 8(e) of the Broker Warrant Certificates having been approved by 1933 Act or any applicable state "Blue Sky" laws.
(xi) At the board of directors of time the Corporation Registration Statement and complying any post-effective amendment thereto became effective, the Registration Statement, and at the time the Prospectus and any amendments or supplements thereto were first issued, the Prospectus, com-plied as to form in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized1933 Act, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered SecuritiesSEC Regulations, the Broker’s Warrants and the Corporate Finance Fee SharesCommodity Act, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the CFTC regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
(xv) all necessary documents having been filed, all requisite proceedings having been taken and all approvals, permits, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws and the rules of the CSE;
NFA. Nothing has come to their attention that would cause them to believe that (xviiia) at the attributes of time that the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus Registration Statement and the Final Prospectus;
(xix) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under the Applicable Securities Laws in order to qualify the Offered Securitiesany post-effective amendment thereto became effective, the Broker’s Warrants and the Corporate Finance Fee Shares for distribution in the Qualifying Provinces by Registration Statement contained any untrue statement of a material fact or through investment dealers or brokers who are registered under the Applicable Securities Laws and who have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares omitted to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being state a material fact required to be filed, proceedings taken stated therein or approvals, permits, consents or authorizations required necessary to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) make the first trade instatements therein not misleading, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received Prospectus as first issued or as subsequently issued or at Closing Time contained an untrue statement of a certificatematerial fact or omitted to state a material fact necessary in order to make the statements therein, dated as in the light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief (A) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (B) as to the performance data set forth in the Registration Statement.
(xii) Assuming operation in accordance with the Prospectus, the Trust at a Closing DateTime will not be an "investment company" as that term is defined in the Investment Company Act of 1940, signed by the Chief Executive Officer and the Chief Financial Officer Managing Owner need not be registered as an "investment adviser" under the Investment Advisers Act of 1940 in respect of its management of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;Trust.
(c) At the Corporation shall cause Initial Closing Time, counsel for the Auditors to Selling Agent (as selected by such Selling Agent) shall, if required by the Managing Owner, deliver its opinion to the Agent a comfort letter, dated as of the Closing Dateparties, in form and substance satisfactory to the Agentparties, acting reasonably, bringing forward to a date not more than two Business Days prior to regarding such pertinent matters as the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;Managing Owner may deem appropriate.
(d) At the Agent shall have received a certificateInitial Closing Time, dated counsel for each Trading Advisor (as of the Closing Dateselected by each such Trading Advisor) shall, signed if required by the Chief Executive Officer Managing Owner, deliver its opinion to the parties, in form and Chief Financial Officer of substance reasonably satisfactory to the Corporationparties, or regarding such other officers of the Corporation pertinent matters as the Agent Managing Owner may requestdeem appropriate.
(e) At the Initial Closing Time, certifying for Richards, Layton & Finger, P.A., Delaware counsel to the Mana▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇l deliver its opinion, on which Sidley Austin Brown & Wood LLP may rely, in form and on behalf of substance satis▇▇▇▇▇▇▇ ▇▇ ▇he ▇▇▇▇ging Owner.
(f) At each Closing Time, the Corporation, after having made due enquiry and after having carefully examined Managing Owner shall deliver a certificate to the Final Prospectus and any Supplementary Material, effect that:
: (i) no order suspending the Corporation has complied with all effectiveness of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation Registration Statement has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having therefor have been instituted or being pending or, to the best of their knowledge of such officersupon due and diligent inquiry threatened by the SEC, contemplated the CFTC or threatened under any relevant securities laws other regulatory or self-regulatory body; (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(vii) the representations and warranties of the Corporation Managing Owner contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, herein are true and correct with the same effect as though expressly made at the such Closing Time and in respect of the Registration Statement as in effect at such Closing Time; and (iii) the Managing Owner has performed all covenants and agreements herein contained which are required to be performed on its part at or prior to such Closing Time.
(g) At or prior to the Initial Closing Time, the Trust shall have received a capital contribution of the Managing Owner in the amount required by its Trust Agreement and as described in the Prospectus.
(h) At the Initial Closing Time, the Selling Agents shall have received letters from one or more accounting firms describing certain agreed upon procedures which they have performed in reviewing certain performance numbers set forth in the Prospectus.
(i) Each Trading Advisor shall deliver a report dated as of the Initial Closing Time, which shall present, for the period from the date after the last day covered by the actual Performance Summaries in the Prospectus (with respect to the Trading Advisors) to the Managing Owner to the latest practicable day before the Initial Closing Time, figures which shall be a continuation of such Summaries and which shall certify that such figures are accurate in all material respects. The Trading Advisors shall also certify that such Tables have been calculated in accordance with the notes to the applicable Summaries in the Prospectus.
(j) At each Additional Closing Time thereafter, the parties hereto shall have been furnished with such information, opinions and certified documents as the Managing Owner may deem to be necessary or appropriate.
(k) At each Additional Closing Time, each Trading Advisor shall deliver a certificate to the effect that (i) the representations and warranties of such Trading Advisor contained herein are true and correct with the same force and effect as if though expressly made on at such Additional Closing Time and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the OfferingRegistration Statement as in effect at such Additional Closing Time, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) such Trading Advisor has per-formed all covenants and agreements herein contained to be performed on its part at or prior to such Additional Closing Time.
(l) At the Warrant Shares; (iii) the Broker Shares issuable upon exercise Initial Closing Time, executed copies of the Broker’s WarrantsTrust Agreement, the Customer Agreements, the Escrow Agreement, the Advisory Agreements, and this Agreement shall be delivered to all parties.
(m) The parties hereto shall have been furnished with such additional information, opinions and documents, including supporting documents relating to parties described in the Prospectus and certificates signed by such parties with regard to information relating to them and included in the Prospectus as they may reasonably require for the purpose of enabling them to pass upon the sale of the Units as herein contemplated and related proceedings, in order to evidence the accuracy or completeness of any of the representations or warranties or the fulfillment of any of the conditions herein contained; and (iv) all actions taken by the Corporate Finance Fee Shares 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, counsel for the Managing Owner and t▇ ▇▇▇▇▇▇▇ ▇▇r t▇▇ ▇elling Agent. If any of the conditions specified in this Section 10 shall not have been fulfilled when and as required by this Agreement to be conditionally listed on thefulfilled prior to a Closing Time, 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 prior to such Closing Time, and any such cancellation or termination shall be without liability of any party to any other party other than in respect of Units already sold and except as otherwise provided in Sections 6 and 11 of this Agreement.
Appears in 1 contract
Conditions of Closing. The following are conditions precedent to Closing and the obligations Issuer’s and Subscriber's participation in this Offering and purchase of the Agent to complete Subscription Receipts is conditional upon the Closing following, all of which must be met or waived by the Subscriber and of the Purchasers to purchase Issuer before the Offered Securities at the Closing Time, which conditions the Corporation covenants and agrees to use its best efforts to fulfil within the time respective condition dates as set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agentherein:
(a) the Corporation shall have caused its counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on or before the Closing Date addressed to Date, the Agent Issuer and the Purchasers, in form and substance satisfactory to Subscriber shall enter into an investor rights agreement that will provide the Agent acting reasonably, Subscriber with respect to the following mattersrights:
(i) as long as the Corporation being a “reporting issuer”, or its equivalent, in each Subscriber owns at least 10% of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being a corporation existing under the laws of the Business Corporations Act (British Columbia);
(iii) the Corporation having the corporate power and capacity to own and lease its property and assets and to conduct its Business as described in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares Common Shares on a fully diluted basis (or Subscription Receipts, or a combination of Subscription Receipts and Common Shares, entitling the holder to receive at least 10% of the Subsidiary registeredissued and outstanding Common Shares on a fully diluted basis), directly or indirectly, in allow the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity Subscriber to execute and deliver the Transaction Documents and nominate one director to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus and the Final Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(viii) the Offered Shares and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation Issuer and complying in all material respects with as long as the requirements Subscriber owns at least 31% of the Business Corporations Act (British Columbia)issued and outstanding Common Shares on a fully diluted basis, allow the Subscriber to nominate two directors to the board of directors of the Issuer;
(xii) provide the Warrants and Subscriber with the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise opportunity to subscribe for additional common shares of the Warrants having been reserved for issuance by the Corporation and, Issuer upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;Issuer achieving certain milestones; and
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiii) all necessary corporate action having been taken by the Corporation to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having been executed and delivered by the Corporation and constituting legal, valid and binding obligations of the Corporation, enforceable against the Corporation in accordance with their respective terms, subject to standard qualifications, including that specific performance and other equitable remedies may only be granted in the discretion of a court of competent jurisdiction, that the provisions thereof relating to indemnity, contribution and waiver of contribution may be unenforceable;
(xiv) the execution and delivery of the Transaction Documents, the fulfilment of the terms hereof and thereof by the Corporation, including the issuance and sale of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, do not and will not (as the case may be) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, whether after notice or lapse of time or both: (i) the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws of the Corporation; or (iii) Applicable Securities Laws;
provides the Subscriber with the right to participate in future equity financings by the Company on a pro rata basis, provided that the Subscriber owns at least 10% of the Common Shares on a fully diluted basis (xv) all necessary documents having been filedor Subscription Receipts, or a combination of Subscription Receipts and Common Shares, entitling the holder to receive at least 10% of the issued and outstanding Common Shares on a fully diluted basis), all requisite proceedings having been taken and all approvalsas further detailed in the Term Sheet. In addition, permitspursuant to such investor rights agreement, authorizations and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained Subscriber shall be bound by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant “standstill” provisions of Applicable Securities Laws;
(xvi) subject to the qualifications set out in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed thereinTerm Sheet;
(xviib) no filing, proceeding, approval, consent on or authorization is required to be made, taken or obtained by before the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered SecuritiesClosing Date, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is paid or given in respect of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws Subscriber and the rules of Issuer will enter into a cannabis supply agreement on the CSEterms set out in the Term Sheet;
(xviiic) on or before the attributes Closing Date, the Issuer and Au▇▇▇▇ ▇▇▇▇▇▇▇ ▇rojects Inc., a wholly owned subsidiary of the Offered Securities are consistentSubscriber, in all material respects, with shall enter into a consulting and maintenance services agreement on the descriptions terms set out in the Preliminary Prospectus and the Final ProspectusTerm Sheet;
(xixd) all necessary documents have been filed, all proceedings have been taken and all legal requirements have been fulfilled as required under on or before the Applicable Securities Laws in order to qualify the Offered SecuritiesClosing Date, the Broker’s Warrants Issuer shall provide evidence satisfactory to the Subscriber, acting reasonably, that the Shareholders' Agreement has been terminated; and
(e) on or before the Closing Date, the Subscriber and the Corporate Finance Fee Shares for distribution Subscriber will enter into a Subscription Receipts subscription agreement on terms satisfactory to each party and the Subscriber's board of directors shall have approved the Subscriber's participation in this Offering and the Qualifying Provinces by investor rights agreement, the cannabis supply agreement and the consulting and maintenance services agreement referred to above. For clarity, if the above noted conditions are not met on or through investment dealers or brokers who are registered under before January 12, 2018, then this Subscription Agreement will become void and the Applicable Securities Laws and who parties will have complied with the relevant provisions of the Applicable Securities Laws;
(xx) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares no further obligations to the holders of Warrants upon their exercise each other pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant Indenture; and
(xxvi) TMX Equity Transfer Services Inc. having been duly appointed as the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel to the Corporation may rely on the opinions of local counsel in the Qualifying Provinces acceptable to counsel to the Agent, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;
(b) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation, or such other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as of the Closing Date, signed by the Chief Executive Officer and Chief Financial Officer of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporation, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) the Corporation has complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidential; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Subscription Agreement, are true and correct as at the Closing Time in all material respects, with the same force and effect as if made on and as at the Closing Time, after giving effect to the transactions contemplated by this Agreement;
(e) all consents, approvals, permits, authorizations or filings as may be required to be made or obtained by the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, will have been made or obtained, as applicable (other than, in respect of the Offering, the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on the.
Appears in 1 contract
Conditions of Closing. 9.1 The following are conditions precedent to the obligations of the Agent under this Agreement shall be subject to complete the Closing and of the Purchasers to purchase the Offered Securities at the Closing Timefollowing conditions, which conditions are for the Corporation covenants sole benefit of the Agent and agrees to use its best efforts to fulfil within the time set out herein therefor, and which conditions may be waived in writing in whole or in part by the Agent, in its sole discretion:
(a) the Corporation Agent shall have caused its counsel, Stikeman Elliott LLP, to deliver to the Agent legal opinions dated and delivered on received at the Closing Date Time favourable legal opinions, addressed to the Agent and the PurchasersAgent, in form and substance satisfactory to the Agent and to the Agent's Counsel, acting reasonably, with respect dated the Closing Date from the Corporation's Counsel as to the following mattersLaws of Canada and the Qualifying Provinces, which counsel in turn may rely upon the opinions of local or special counsel where they deem such reliance proper (or alternatively make arrangements to have such opinions directly addressed to the Agent), and all such counsel may also rely as to matters of fact, on certificates of public officials and senior officers of the Corporation, and letters from representatives of the CSE and the Transfer Agent, to the effect that (or as to, as applicable), based upon customary assumptions and subject to customary qualifications:
(i) the Corporation being a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and not in default under Applicable Securities Laws in the Qualifying Jurisdictions;
(ii) the Corporation being is a corporation validly existing under the laws of the Business Corporations Act (British Columbia)) and has all requisite corporate power and capacity to carry on business and to own and lease properties and assets as contemplated by the Prospectus;
(ii) the authorized and issued capital of the Corporation;
(iii) the Corporation having attributes of the corporate power and capacity to own and lease its property and assets and to conduct its Business as described Offered Shares are consistent in all material respects with the description of the Offered Shares in the Final Prospectus;
(iv) the authorized and issued share capital of the Corporation;
(a) that the Subsidiary is a corporation existing under the laws of the jurisdiction in which it exists, and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; and (b) as to the issued and outstanding shares of the Subsidiary registered, directly or indirectly, in the name of the Corporation;
(vi) the Corporation having all necessary corporate power and capacity to execute and deliver the Transaction Documents and to perform its obligations hereunder and thereunder, including to create, issue and sell the Offered Securities, the Corporate Finance Fee Shares and the Broker’s Warrants, to issue the Warrant Shares issuable upon the exercise of the Warrants and to issue the Broker Shares issuable upon the exercise of the Broker’s Warrants;
(vii) the Corporation has the necessary corporate power and authority to sign and deliver the Preliminary Prospectus and the Final Prospectus and all necessary corporate action having has been taken by the Corporation to authorize the execution and delivery of each of the Preliminary Prospectus Prospectus, the Amended and Restated Preliminary Prospectus, the Final Prospectus and any Supplementary Material and the filing thereof with the Securities CommissionsCommissions in the Qualifying Provinces and, if applicable, the delivery of the final U.S. Private Placement Memorandum;
(viiiv) confirming the opinion of ▇▇▇▇▇▇▇▇ LLP concerning tax matters contained under the headings “Certain Canadian Federal Income Tax Considerations” and “Eligibility for Investment” in the Prospectus;
(vi) the Corporation has all necessary corporate power, capacity and authority to (i) execute (if applicable) and deliver each of the Offering Documents and to file each of the Offering Documents in the Selling Jurisdictions, (ii) execute, deliver and perform its obligations under this Agreement and the Compensation Option Certificate, as applicable, (iii) to create, issue and sell the Offered Shares Shares, and (iv) to issue the Agent's Commission Shares, the Compensation Options, the Compensation Shares, and the Corporate Finance Fee Shares having been duly and validly authorized for issuance and that, at the Closing Time and upon payment of the purchase price therefor and the issuance thereof, the Offered Shares and the Corporate Finance Fee Shares will be duly and validly issued as fully paid and non-assessable Common Shares;
(ix) the form and terms of the Broker Warrant Certificates having been approved by the board of directors of the Corporation and complying in all material respects with the requirements of the Business Corporations Act (British Columbia);
(x) the Warrants and the Broker’s Warrants have been validly authorized, issued and created;
(xi) the Warrant Shares issuable upon exercise of the Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Warrant Indenture, being validly issued as fully paid and non-assessable Common Shares;
(xii) the Broker Shares issuable upon exercise of the Broker’s Warrants having been reserved for issuance by the Corporation and, upon the payment of the exercise price therefor and the issue thereof in accordance with the terms of the Broker Warrant Certificates, being validly issued as fully paid and non-assessable Common Shares;
(xiiivii) all necessary corporate action having has been taken by the Corporation to authorize the execution and delivery of this Agreement and the Transaction Documents Compensation Option Certificate and the performance of its obligations hereunder thereunder and thereunder, including the issuance and sale each of the Offered Securities, the Broker’s Warrants this Agreement and the Corporate Finance Fee Shares, the issuance of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s Warrants, and the Transaction Documents having Compensation Option Certificate has been duly executed and delivered by the Corporation and constituting constitutes a legal, valid and binding obligations obligation of the Corporation, Corporation enforceable against the Corporation it in accordance with their respective its terms, subject to standard qualificationsbankruptcy, including that specific performance insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may only be granted in the discretion of a court of competent jurisdiction, jurisdiction and that the provisions thereof relating enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be unenforceablelimited by applicable law;
(xivviii) the execution and delivery of this Agreement and the Transaction Documents, Compensation Option Certificate and the fulfilment of the terms hereof and thereof by the CorporationCorporation and the creation, including the issuance issuance, sale and sale delivery, as applicable, of the Offered Securities, the Broker’s Warrants Shares and the Corporate Finance Fee Shares, Compensation Securities and the issuance grant of the Warrant Shares upon exercise of the Warrants and the issuance of the Broker Shares upon exercise of the Broker’s WarrantsAgent's Option, do not and will not (as the case may be) conflict with or result in a breach of or violation of any of the terms or provisions of, or constitute a default under, whether and do not and will not create a state of facts which, after notice or lapse of time or both: (i) , will result in a breach of or default under, and do not and will not conflict with the provisions of the Business Corporations Act (British Columbia) or the regulations thereunder, (ii) the constating documents and by-laws articles of the Corporation; , any resolutions of the shareholders or directors (iiiincluding committees of the board of directors) of the Corporation, or any applicable corporate law or Applicable Securities Laws;
(xvix) all necessary documents having the Offered Shares have been filed, all requisite proceedings having been taken validly issued as fully paid and all approvals, permits, authorizations and consents non-assessable shares in the capital of the appropriate regulatory authority in each of the Qualifying Jurisdictions having been obtained by the Corporation to qualify the distribution of the Offered Securities through persons who are registered under Applicable Securities Laws and who have complied with the relevant provisions of Applicable Securities LawsCorporation;
(xvix) subject to the qualifications set out in the Preliminary Prospectus Agent's Commission Shares and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” the Offered Shares, the Warrants underlying the Units and the Warrant Shares underlying the Warrants are “qualified investments” for Exempt Plans, and the statements in the Preliminary Prospectus and the Final Prospectus under the headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, constitute a fair summary of the matters discussed therein;
(xvii) no filing, proceeding, approval, consent or authorization is required to be made, taken or obtained by the Corporation under Applicable Securities Laws, other than such as have been filed or obtained, to permit the issuance by the Corporation of the Offered Securities, the Broker’s Warrants, the Broker Shares or the Corporate Finance Fee Shares, provided that no commission or other remuneration is Shares have been validly issued as fully paid or given and non-assessable shares in respect the capital of the distribution except for administrative or professional services or for services performed by a registered dealer, except as may be required under Applicable Securities Laws Corporation;
(xi) the Compensation Options have been duly and validly created and issued and the rules Compensation Shares have been reserved, authorized and allotted for issuance and, upon the due exercise of the Compensation Options in accordance with the provisions of the Compensation Option Certificates, including payment of the exercise price therefor, the Compensation Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(xii) the form of definitive share certificate representing the Common Shares has been duly approved and adopted by the Corporation, complies with applicable Law, the articles of the Corporation and the resolution of the Board of Directors relating thereto and meets the requirements of the CSE;
(xviiixiii) the attributes form of Compensation Option Certificate has been duly approved and adopted by the Corporation, complies with applicable Law, the articles of the Offered Securities are consistent, in all material respects, with the descriptions in the Preliminary Prospectus Corporation and the Final Prospectusresolution of the Board of Directors relating thereto and meets the requirements of the CSE;
(xixxiv) subject to the fulfillment by the Corporation of the Standard Listing Conditions, the Common Shares (including the Offered Shares, Agent's Commission Shares, Corporate Finance Fee Shares and Compensation Shares issuable upon exercise of the Compensation Options) have been conditionally approved for listing on the CSE;
(xv) the Transfer Agent, at its principal office in Vancouver, British Columbia has been duly appointed as the transfer agent and registrar of the Corporation for the Common Shares and the Proportionate Voting Shares;
(xvi) all necessary documents have been filed, filed and all requisite proceedings have been taken and all legal requirements have been fulfilled as required Authorizations of appropriate Regulatory Authorities under the Applicable Securities Laws in order have been obtained to qualify the Distribution of the Offered SecuritiesShares, the Broker’s Warrants Agent's Commission Shares, the Compensation Options (and the Compensation shares issuable upon exercise thereof) and the Corporate Finance Fee Shares for distribution in each of the Qualifying Provinces by or Selling Jurisdictions through investment dealers or brokers who are duly registered under the Applicable Securities Laws and of each such Selling Jurisdiction who have complied with the relevant provisions of the Applicable Securities LawsLaws of such Selling Jurisdictions;
(xxxvii) the issue and delivery by the Corporation in the Qualifying Provinces of the Warrant Shares to the holders of Warrants upon their exercise pursuant to the terms of the Warrant Indenture being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxi) the first trade in, or resale of, the Warrant Shares issuable upon exercise of the Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a "reporting issuer at the time of the trade, and such trade is not a transaction or series of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined issuer" under Applicable Securities Laws);
(xxii) the issue and delivery by the Corporation in the Qualifying Provinces of the Broker Shares to the holders of Broker’s Warrants upon their exercise pursuant to the terms of the Broker Warrant Certificates being exempt from, or not subject to, the prospectus requirements of Applicable Canadian Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such issue;
(xxiii) the first trade in, or resale of, the Broker Shares issuable upon exercise of the Broker’s Warrants being exempt from, or not subject to, the prospectus requirements of Applicable Securities Laws and no prospectus or other documents being required to be filed, proceedings taken or approvals, permits, consents or authorizations required to be obtained under Applicable Securities Laws (other than such as will have already been filed or obtained) to permit such trade, provided that the trade will not be a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities), the Corporation is a reporting issuer at the time of the trade, and such trade is not on a transaction or series list of transactions involving purchases and sales or repurchases and resales in the course of or incidental to a “distribution” (as defined under Applicable defaulting reporting issuers maintained by any Securities Laws);
(xxiv) all necessary documents have been filed or posted by the Corporation with the CSE for the listing of: (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares, subject only to the Standard Listing Conditions;
(xxv) TSX Trust Company having been duly appointed as the warrant agent pursuant to the Warrant IndentureCommission; and
(xxvixviii) TMX Equity Transfer Services Inc. having been duly appointed with respect to such other matters as may reasonably be requested by the transfer agent and registrar for the Common Shares. In connection with such opinions, counsel Agent prior to the Corporation may rely on the opinions of local counsel Closing Time; in the Qualifying Provinces form and substance acceptable to counsel to the Agent, and Agent's Counsel, acting reasonably, as to qualification for distribution of the Offered Securities, the Broker’s Warrants and the Corporate Finance Fee Shares or opinions may be given directly by local counsel of the Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province in which they are qualified to practise and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Corporation and others;.
(b) the Agent shall have received from local counsel in each jurisdiction of incorporation, organization or formation, as the case may be, of each Subsidiary, a certificatelegal opinion, in form and substance satisfactory to the Agent, and the Agent's Counsel, acting reasonably, with respect to the following matters:
(i) each of the Subsidiaries is a corporation or other form of entity existing under the laws of the jurisdiction in which it was incorporated, organized, formed, amalgamated or continued, as the case may be;
(ii) each of the Subsidiaries has the corporate capacity and power to own and lease its properties and assets and to conduct its business as currently being conducted;
(iii) all of the issued and outstanding shares or other ownership interests or rights of the Subsidiaries are registered, directly or indirectly, in the name of the Corporation or a subsidiary of the Corporation; and
(iv) each Subsidiary being current with all corporate filings required to be made under its jurisdiction of incorporation, organization or formation, as the case may be;
(c) if any Offered Shares are offered and sold in the United States, the Corporation will cause a legal opinion to be delivered to the Agent by the Corporation's counsel, dated and delivered on the Closing Date, in form and substance reasonably satisfactory to the Agent, to the effect that registration under the U.S. Securities Act is not required in connection with the offer and sale of the Offered Shares, provided such offers and sales are made in compliance with Schedule C to this Agreement and provided further that it being understood that no opinion is expressed as to any subsequent resale of any Offered Shares;
(d) the Corporation shall have delivered to the Agent without charge and in such numbers as the Agent may reasonably request, no later than the third Business Day after the issuance of the Final Passport System Decision Document, in each of the Qualifying Provinces, or such later time as may be agreed upon by the Corporation and the Agent, in such Canadian cities as the Agent may reasonably request, the reasonable requirements of conformed commercial copies of the Final Prospectus, the (final) U.S. Private Placement Memorandum, if applicable, and any Supplementary Material, if applicable;
(e) the Agent shall have received at the Closing Time certificates dated the Closing Date, signed by the appropriate officers of the Corporation, addressed to the Agent and the Agent's Counsel, with respect to:
(i) the constating documents of the Corporation;
(ii) the resolutions of the directors of the Corporation relevant to the sale of the Offered Shares, the issuance and delivery of the Compensation Options, Agent's Commission Shares and the Corporate Finance Fee Shares, and the authorization of the Offering Documents and the transactions contemplated herein and therein; and
(iii) the incumbency and signatures of signing officers for the Corporation;
(f) the Agent shall have received at the Closing Time a certificate or certificates dated the Closing Date and signed on behalf of the Corporation by the Chief Executive Officer and the Chief Financial Officer of the Corporation, Corporation or such any other officer(s) of the Corporation as the Agent may agree, certifying for and on behalf of the Corporation with respect to: (i) the constating documents of the Corporation; (ii) the resolutions of the Corporation’s board of directors relevant to the Offering and the authorization of the other agreements and transactions contemplated herein; and (iii) the incumbency and signatures of signing officers of the Corporation;
(c) the Corporation shall cause the Auditors to deliver to the Agent a comfort letter, dated as of the Closing Date, in form and substance satisfactory officer acceptable to the Agent, acting reasonably, bringing forward to a date not more than two Business Days prior addressed to the Closing Date Agent certifying, to the information contained in the comfort letter referred to in subsection 4(a)(iii) hereof;
(d) the Agent shall have received a certificate, dated as best of the Closing Dateinformation, signed by the Chief Executive Officer knowledge and Chief Financial Officer belief of the Corporation, or such other officers of the Corporation as the Agent may request, certifying for and on behalf of the Corporationeach person so signing, after having made due enquiry inquiry and after having carefully examined the Final Prospectus and any Supplementary MaterialOffering Documents, that:
(i) since the date information is given in the Final Prospectus (A) there has been no material change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, capital, prospects, assets or liabilities (contingent or otherwise) of the Corporation and the Subsidiaries on a consolidated basis, and (B) no transaction has been entered into by the Corporation or any of the Subsidiaries which constitutes a material change to the Corporation on a consolidated basis, other than as disclosed in the Final Prospectus or the Supplementary Material, as the case may be;
(ii) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Final Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Final Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Final Prospectus or which would result in the Final Prospectus not complying with applicable Canadian Securities Laws in the Qualifying Provinces, and each such statement shall be true and the Agent shall have no knowledge to the contrary;
(iii) no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Common Shares or any other securities of the Corporation 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 Corporation, contemplated or threatened by any Governmental Body;
(iv) the Corporation has complied in all material respects with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time in all material respects;
(ii) no order, ruling or determination having the effect of ceasing or suspending the trading in the Common Shares or prohibiting the sale of the Offered Securities or any other securities of the Corporation has been issued by any regulatory authority and continuing in effect and no proceedings for such purpose having been instituted or being pending or, to the knowledge of such officers, contemplated or threatened under any relevant securities laws (including Applicable Securities Laws) or by any regulatory authority;
(iii) subsequent to the respective dates as at which information is given in the Final Prospectus, there has not occurred a Material Adverse Effect or any change or development involving a prospective Material Adverse Effect, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(iv) no material change relating to the Corporation and the Subsidiary, taken as a whole, has occurred since the date hereof with respect to which the requisite material change report has not been filed and no such disclosure having been made on a confidential basis that remains confidentialTime; and
(v) the representations and warranties of the Corporation contained in this Agreement and in any certificates of the Corporation delivered pursuant to or in connection with this Agreement, are true and correct as at of the Closing Time in all material respects, Date with the same force and effect as if made on at and as at of the Closing Time, Time after giving effect to the transactions contemplated by this Agreementhereby;
(eg) the Agent shall have received (i) at the Closing Time, the electronically executed Compensation Option Certificate, and (ii) the original, fully executed Compensation Option Certificate no later than three Business Days following Closing;
(h) the Agent shall have received from each of the Locked-up Persons identified in Schedule "B" hereto, an executed Lock-up Agreement in a form satisfactory to the Agent, acting reasonably;
(i) the Agent shall have received at the Closing Time a bring-down comfort letter dated the Closing Date from the Corporation's Auditors addressed to the Agent and the Board of Directors, in form and substance satisfactory to the Agent, and the Agent's Counsel, similar to the comfort letter to be delivered to the Agent pursuant to Section 4.1(b) with such changes as may be necessary to bring the information therein forward to a date which is no earlier than two Business Days prior to the Closing Date, which changes shall be acceptable to the Agent;
(j) the Agent shall have received a certificate of status and/or compliance, where issuable under applicable Law, for the Corporation, and each Subsidiary, dated within one Business Day prior to the Closing Date;
(k) the Agent shall have received a certificate from the Transfer Agent as to the number of Common Shares issued and outstanding as at the end of the Business Day on the date prior to the Closing Date;
(l) the Agent shall have received at the Closing Time such other certificates, statutory declarations, agreements or materials, in form and substance satisfactory to the Agent, and the Agent's Counsel, acting reasonably, as the Agent and the Agent's Counsel may reasonably request;
(m) the Agent shall have received evidence of the approval (or conditional approval) of the listing and posting for trading of the Common Shares (including the Offered Shares, the Agent's Commission Shares, the Corporate Finance Fee Shares and the Compensation Shares issuable upon exercise of the Compensation Options on the CSE, subject only to satisfaction by the Corporation of the Standard Listing Conditions;
(n) all consents, approvals, permits, authorizations Authorizations or filings as may be required by any Governmental Body, or any other third party necessary to be made or obtained by complete the Corporation under Applicable Securities Laws in the Qualifying Provinces necessary for the offer and sale of the Offered Securities, the execution and delivery of this Agreement and the consummation of the transactions Shares as contemplated hereby, will herein shall have been made or obtained;
(o) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Corporation or prohibiting the sale of the securities underlying the Offered Shares or any of the Corporation's issued securities shall have been issued and no proceeding for such purpose shall be pending or, to the knowledge of the Corporation, threatened by any Regulatory Authority; and
(p) each of the representations and warranties of the Corporation contained in this Agreement shall be true and correct as of the Closing Time, to the satisfaction of the Agent, acting reasonably, as applicable (other than, in respect if made at and as of each such Closing Time and the Corporation shall have fulfilled each of the Offering, covenants contained in this Agreement to the filing of reports required under Applicable Securities Laws in the Qualifying Provinces within the prescribed time periods and the filing of standard documents with the CSE, which documents will be filed as soon as practicable after the Closing Date and, in any event, within such deadline as may be imposed by such Securities Laws or the CSE) and the Agent will have received copies of correspondence indicating that the Corporation has obtained all necessary approvals for the (i) the Offered Shares; (ii) the Warrant Shares; (iii) the Broker Shares issuable upon exercise satisfaction of the Broker’s Warrants; and (iv) the Corporate Finance Fee Shares to be conditionally listed on theAgent, acting reasonably.
Appears in 1 contract
Sources: Agency Agreement