Conditions of Closing. The obligation of the Agent to complete the Offering and of the Purchasers to purchase (i) the Initial Special Warrants at the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s Option Closing Date, shall be subject to the following: (a) The Agent will receive at the Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel dated the Closing Date, from the Company’s Canadian counsel, DLA Piper (Canada) LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent and its counsel, acting reasonably, with respect to the following matters: (i) the Company is incorporated and validly existing under the laws British Columbia, and has all requisite corporate power and capacity to carry on its business as now conducted and to own, lease and operate its property and assets; (ii) as to the authorized and issued capital of the Company; (iii) the Initial Special Warrants have been duly and validly created, authorized and issued; (iv) the Additional Special Warrants have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued; (v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued; (vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company; (vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the Company; (viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia); (ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants; (x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants; (xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications; (xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement; (xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement; (xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares; (xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants; (xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale; (xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance; (xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance; (xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications; (xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions; (xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act; (xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list; (xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and (xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others; (b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants; (c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved; (d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel; (e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to: (i) the Notice of Articles and Articles of the Company; (ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and (iii) the incumbency and signatures of signing officers of the Company; (f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one (1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries; (g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that: (i) the Company has complied in all respects with all the covenants
Appears in 2 contracts
Sources: Agency Agreement, Agency Agreement
Conditions of Closing. The obligation of the Agent to complete the Offering and of the Purchasers Underwriters to purchase (i) the Initial Special Warrants Shares at the Closing Time of Closing on the Closing Date and, (ii) if applicable, the and to purchase any Additional Securities Shares at the Closing Time of Closing on the Purchaser’s an Option Closing Date, Date shall be subject to the following:
(a) The Agent the Underwriters will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent Underwriters and its their counsel dated and delivered on the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) Torys LLP, and from local counsel (only in respect of matters governed by laws of any the Qualifying Jurisdiction Jurisdictions where the Company’s Canadian counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent Underwriters and its their 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 Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as being in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the federal laws British Columbiaof Canada, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assetsassets as described in the Prospectus;
(iiiii) as to the authorized authorized, and issued and outstanding, capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issued;
(iv) the Additional Special Warrants have been duly rights, privileges, restrictions and validly created, authorized and reserved for issuance, and upon conditions attaching to the exercise of Offered Shares are accurately summarized in all material respects in the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issuedProspectus;
(v) the Unit Initial Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and are outstanding as fully paid and non-assessable Subordinate Voting Shares of the CompanyCommon Shares;
(viiivi) the form and terms Additional Shares issuable upon the exercise of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) Over-Allotment Option have been approved duly and validly allotted and reserved for issuance by the directors Company and, upon the valid exercise of the Over-Allotment Option and receipt by the Company of payment in full therefor, the Additional Shares will be duly and comply in all material respects with the rules of the CSE validly authorized and the Business Corporations Act (British Columbia)issued and will be outstanding as fully paid and non-assessable Common Shares;
(ixvii) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents this Agreement and to perform its obligations thereunderunder this Agreement; (ii) to create, offer, issue issue, sell and sell deliver the Initial Special WarrantsShares; and (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue issue, sell and sell deliver the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the WarrantsOver-Allotment Option;
(xviii) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material and the filing thereof in each of the Qualifying Jurisdictions;
(ix) the Company has duly authorized, executed and delivered the Transaction Documents delivered, this Agreement and authorized the performance of its obligations thereunderhereunder, including the creationoffering, issuanceissue, sale and delivery of the Initial Special WarrantsShares, the creation, issuance and grant of the Purchaser’s Over-Allotment Option, the creationoffering, issuanceissue, sale and delivery of the Additional Securities to be issued Shares upon the valid exercise of the Over-Allotment Option and sold receipt by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicablepayment in full therefor, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents this Agreement constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to: (i) applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors’ rights generally; (ii) equitable remedies, including the remedies of specific performance and injunctive relief, being available only in the discretion of the applicable court; (iii) the applicable laws regarding limitations of actions; (iv) enforceability of provisions which purport to usual sever any provision which is prohibited or unenforceable under Applicable Law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; (v) enforceability of the provisions exculpating a party from liability or duty otherwise owed by it may be limited under Applicable Law; and customary qualifications(vi) the rights to indemnity, contribution and waiver under the documents which may be limited or unavailable under Applicable Law;
(xiix) the execution and delivery of the Transaction Documents this Agreement and the performance fulfillment of the terms thereofhereof, the offeroffering, issue issue, sale and sale delivery of the Initial Special WarrantsShares, the creation, issue and grant of the Purchaser’s Over-Allotment Option, the creationoffering, issue, sale and delivery of the Additional Securities Shares upon the valid exercise of the Purchaser’s Option, Over-Allotment Option and receipt by the issue and delivery Company of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrantspayment in full therefor, and the consummation of the other transactions contemplated by the Transaction Documentsthis Agreement, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (ai) any of the terms, conditions or provisions of the Notice articles of Articles incorporation or Articles amalgamation, as applicable, and by-laws of the Company, (ii) resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (biii) any the laws of the Province of British Columbia or Ontario and the federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiiixi) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company Computershare Investor Services Inc. is the duly appointed registrar and transfer agent for the Subordinate Voting Common Shares;
(xvxii) Odyssey Trust Company has all necessary documents have been appointed the special warrant agent in respect filed, all requisite proceedings have been taken, all approvals, permits and consents of the Special Warrants and as warrant agent appropriate regulatory authority in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the each Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities LawsJurisdiction have been obtained, and no prospectus or other documents are required all necessary legal requirements have been fulfilled, in order to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying qualify the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Initial Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, Additional Shares in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Jurisdictions through dealers who are registered under Applicable Securities Laws in any and who have complied with the relevant provisions of the Qualifying Jurisdictions which maintain such a listApplicable Laws;
(xxiiixiii) subject only to the Standard Listing Conditions, the Unit Initial Shares and the Warrant Additional Shares have been conditionally listed or approved for listing on the CSETSX;
(xiv) as to the accuracy of the statements under the heading “Eligibility for Investment” in the Prospectus; and
(xxivxv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of ClosingUnderwriters. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the AgentUnderwriters, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Offered Shares or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent Underwriters shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation existence of, each of wholly-owned Material Subsidiary that is Canadian (other than VF Clean Energy, Inc.) addressed to the Subsidiaries (which counsel, in turn may rely, only as Underwriters and legal counsel to matters of fact, on certificates of officers of the Underwriters and based upon an officer’s certificate for each such Subsidiaries, as appropriate and subject to confirmation by the Agent) Material Subsidiary with respect to: (i) the incorporation, existence and good standing of each such Material Subsidiary; and (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the corporate power and capacity of each such Material Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(ec) the Agent Underwriters shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the AgentUnderwriters, in form and content satisfactory to the Agent’s Underwriters’ counsel, acting reasonably, with respect to:
(i) the Notice of Articles articles and Articles by laws of the Company;
(ii) the resolutions of the Company’s board of directors with respect to relevant to, among other things, the issuance, issue and sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities Offered Shares to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(fd) the Agent Underwriters shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) one Business Day prior to of the Closing Date and the Purchaser’s each Option Closing Date, as applicable, from each in respect of the Company and the Subsidiarieseach Material Subsidiary that is Canadian (other than VF Clean Energy, Inc.);
(ge) the Company shall cause its current auditors to deliver to the Underwriters a “bring down” comfort letter, addressed to the Underwriters and the board of directors of the Company, dated the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in Section 25(a)(iii) hereof;
(f) the Company shall deliver to the AgentUnderwriters, at each applicable Time of Closingthe Closing Time, certificates dated the Closing Date and or the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers Underwriters and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the AgentUnderwriters, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or other securities of the Company, or the Offered Shares to be issued and sold by the Company, has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(iv) since the respective dates as of which information is given in the Prospectus or any Supplementary Material (A) there has been no material change in the Company, (B) there has been no material and adverse change (financial or otherwise) in the business, assets (including intangible assets), affairs, operations, prospects, liabilities (contingent or otherwise), capital, properties, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries (taken as a whole), and (C) no transaction has been entered into by, and there has been no transaction that affects, the Company or any Subsidiary which is material to the Company and the Subsidiaries (taken as a whole), other than as disclosed in the Prospectus or in any Supplementary Material;
(v) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Prospectus or which would result in the Prospectus not complying with Applicable Securities Laws; and
(vi) such other matters as the Underwriters may reasonably request;
(g) the Underwriters shall have received copies of correspondence indicating that the Company has obtained the conditional approval of the TSX for the listing of the Offered Shares thereon, subject only to the Standard Listing Conditions;
(h) the representations and warranties of the Company contained in this Agreement will be true at and as of the Closing Time on the Closing Date and, if applicable, the Option Closing Date, as if such representations and warranties were made at and as of such time and all agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by the Company at or prior to the Closing Time on the Closing Date or the Option Closing Date, as applicable, will have been performed, complied with or satisfied at or prior to that time;
(i) the absence of any misrepresentations in the Offering Documents or undisclosed material change or undisclosed material facts relating to the Company or the Offered Shares;
(j) the Company shall have received a Preliminary Receipt and a Final Receipt qualifying the Offered Shares for distribution in the Qualifying Jurisdictions, and neither the Preliminary Receipt nor the Final Receipt shall be invalid or have been revoked or rescinded by any Securities Commission;
(k) the Underwriters shall have received a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date;
(l) the Underwriters will have received such other certificates, opinions, agreements or closing documents in form and substance reasonably satisfactory to the Underwriters as the Underwriters may reasonably request;
(m) the Underwriters will have received evidence, satisfactory to the Underwriters, acting reasonably, that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ has waived his rights under Section 6.3 of the Securityholders Agreement in connection with the Offering;
(n) the Underwriters shall have received copies of any third-party consents required to complete the Offering and the transactions contemplated in this Agreement in form and substance reasonably satisfactory to the Underwriters as the Underwriters may reasonably request; and
(o) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and all other directors and officers of the Company will have entered into an agreement with and an in form and substance satisfactory to the Underwriters at the Closing Time on the Closing Date pursuant to which they will agree not to, for a period commencing on September 23, 2018 and ending on the date that is 30 days following the Closing Date, directly or indirectly, offer, sell, contract to sell, make any short sale, lend, swap, or otherwise dispose of, transfer, assign, or announce any intention to do so, any Common Shares or any securities convertible into or exchangeable or exercisable for Common Shares, whether now owned or hereafter acquired, directly or indirectly, or under their control or direction, or with respect to which each has beneficial ownership or enter into any transaction or arrangement that has the effect of transferring, in whole or in part, any of the economic consequences of ownership of Common Shares, whether such transaction is settled by the delivery of Common Shares, other securities, cash or otherwise, other than pursuant to a bona fide take-over bid or any other similar transaction made generally to all of the shareholders of the Company, provided that, in the event the change of control or other similar transaction is not completed, such securities shall remain subject to the lock-up agreement.
Appears in 2 contracts
Sources: Underwriting Agreement (Village Farms International, Inc.), Underwriting Agreement (Village Farms International, Inc.)
Conditions of Closing. The obligation obligations of the Agent Agents and the Purchasers to complete the Offering and shall be subject to the fulfilment before the Time of Closing of the Purchasers following conditions: (a) the Corporation and the Agents shall have fully complied with all applicable statutory and regulatory requirements required to purchase 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 Initial Special Warrants 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) ▇▇▇▇▇▇▇▇ 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 ExchangedSecurities; and (iv) authorize and approve all other matters relating to the Offering; (e) the Agents, ▇▇▇▇▇▇▇▇ and the Purchasers shall have received at the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time favourable legal opinions of Closing on the Purchaser’s Option Closing Date, shall be subject to the following:
(a) The Agent will receive at the Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel dated the Closing Date, from the Company’s Canadian counsel, DLA Piper Gowling WLG (Canada) LLP, and from local Canadian counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent Corporation, and, where appropriate, counsel in other jurisdictions, addressed to ▇▇▇▇▇▇▇▇, the Agents, their counsel and its counselthe Purchasers, acceptable to counsel to the Agents, acting reasonably, with respect substantially to the following matters:
effect that: (i) as to the Company incorporation, organization and valid existence of the Corporation; (ii) the Corporation is incorporated and validly existing under the laws British Columbia, and has all requisite corporate power and capacity qualified to carry on its business as now conducted presently carried on and to own, lease and operate its property properties; (iii) the Corporation has all requisite corporate capacity, power and assets;
authority to execute and deliver the applicable Corporation Offering Documents and this Agreement and to perform all transactions contemplated hereby and thereby; (iiiv) as to the authorized and issued capital of the Company;
Corporation; (iiiv) all necessary corporate action has been taken by the Corporation to authorize the creationand issue of the Subscription Receipts and the Subscription Shares upon conversion thereof; (vi) the Initial Special Broker Warrants have been duly and validly created, authorized and issued;
the 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; (ivvii) the Additional Special Warrants Broker Warrant Shares have been duly and validly created, authorized and reserved for issuance, issue to the holders of the Broker Warrants upon the due exercise of the Broker Warrants in accordance with the provisions thereof and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Broker Warrants in accordance with the terms of thereof, the Special Broker Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, Shares will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully fully-paid and non-assessable Subordinate Voting Shares of the Company;
Resulting Issuer Shares; (viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications;
(xii) the execution and delivery of the Transaction Corporation Offering Documents and this Agreement and the performance of the terms thereof, transactions contemplated thereby (including the offer, issue and sale of the Initial Special Warrants, Subscription Receipts and Broker Warrants and the creation, issue and grant exchange of the Purchaser’s Option, the creation, issue, sale and delivery securities of the Additional Corporation for the Exchanged Securities upon exercise of pursuant to the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction DocumentsBusiness Combination), do not conflict with or and will not result in a breach of, and do not create a state of (whether facts which, after notice or lapse of time or both) or constitute , will result in a default under (a) breach of and do not and will not conflict with, any of the terms, conditions or provisions of the Notice of Articles by-laws or Articles certificate ofincorporation of the Company, resolutions Corporation; (ix) the Subscription Receipts registered in the names of the shareholders or Purchasers on the board of directors (or any committee thereof) books of the CompanyCorporation at the Time of Closing have been issued and constitute legal, (b) any laws valid and binding obligations of the Province of British Columbia or federal laws of Canada applicable therein, or Corporation; (cx) any the issue and sale of the termsSubscription Receipts and Broker Warrants are exempt, conditions either by statute or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereofregulation or order, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement requirements of the Canadian Securities LawsOffering Jurisdictions, subject to the filing of all necessary reports, certificates or undertakings and no prospectus or other documents are fees required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
applicable securities legislation of the Offering Jurisdictions; (xviixi) the issuance issue of the Unit Shares and Warrants to holders of Initial Special Exchanged Securities, including for greater certainty the Subscription Shares, Broker Warrants and any Additional Special Warrants 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 prospectus requirements of the securities legislation of the Canadian Offering Jurisdictions; (xii) each of this Agreement, the Subscription Receipt Agreement and the Subscription Agreements constitute legal, valid and binding obligations of the Corporation, enforceable in accordance with their terms (subject to bankruptcy, insolvency or other laws affecting the terms 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); (xiii) TSX Trust at its office in Toronto, Ontario has been appointed as the Subscription Receipt and Escrow Agent under the Subscription Receipt Agreement; (xiv) the first trade in the Offering Jurisdictions by the Purchasers and the Agents of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, Exchanged Securities is exempt from the prospectus requirements of Canadian Securities Laws applicable securities laws in the Offering Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are regulatory authorities required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained by the Corporation under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with securities laws topermit the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, Exchanged Securities provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuancethat: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition such first trade, Kitrinor is and has been a reporting issuer in a jurisdiction of Canada for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each the four months immediately preceding the trade; (B) such trade is not a “control distribution” (as defined in NI 45-102); (C) no unusual effort is made to prepare the Tax Act (each, market or to create a “Plan”), provided demand for the Exchanged Securities that at that time, in are the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes subject of the Tax Acttrade; (D) no extraordinary commission or consideration is paid to a person or company in respect of such trade; and (bE) if the Unit Shares and Purchaser is an insider or officer of the Warrant SharesCorporation at the time of the trade, the Company Purchaser has no reasonable grounds to believe that the Corporation is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of applicable securities laws in the Canadian Securities Laws in any of Offering Jurisdictions; and (xv) such other matters as the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing ConditionsAgents and their counsel may require, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closingacting reasonably. In connection with such opiniongiving the opinion contemplated above, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the AgentCorporation shall be entitled, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates 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 Company Corporation in positions to have knowledge of such facts and others;
their accuracy, and certificates of such public officials and other persons as are necessary or desirable; (bf) the Agent Agents, the Corporation and the Purchasers shall have received at the Time of Closing on the Closing Date, a favourable legal opinion opinions of ▇▇▇▇▇ ▇▇▇▇ LLP, Canadian counsel to ▇▇▇▇▇▇▇▇, or where appropriate counsel in other jurisdictions, addressed to the Agent Agents, the Corporation, their counsel and the Purchasers, in form and substance satisfactory acceptable to counsel to the AgentAgents, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, substantially to the effect that: (i) all necessary corporate action has been taken by ▇▇▇▇▇▇▇▇ to authorize the Company creation and issue of the Subscription Shares and the Broker 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 one other laws affecting the rights of its Subsidiaries has creditors generally, general equitable principles including the applicable cannabis licenses it is required availability of equitable remedies and the qualification that no opinion need be expressedas to rights to indemnity, or contribution); (iii) the Subscription Shares have from each such state been authorized and reserved for issue to the holders of Subscription Receipts upon the deemed exercise thereof and in order 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 Company 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 such Subsidiary to transact its cannabis business lapse of time or both, will result in such statea breach of and do not and will not conflict with, anyof the terms, conditions or provisions of the constating documents of Kitrinor; and (iivi) each holder of such licenses has other matters as the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale Agents and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agentstheir counsel may require, acting reasonably. In giving the opinion contemplated above, dated as of the Closing Datecounsel to Kitrinor shall be entitled, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on 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 officers 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 the trading in any securities of the Corporation (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 that purpose shall have been instituted or pending or, to the knowledge of such Subsidiariesofficers, as appropriate contemplated or threatened by any regulatory authority thatcannot be rectified prior to or concurrent with the completion of the Business Combination; (h) the Corporation and subject Kitrinor shall have duly complied with all material terms, covenants andconditions of this Agreement, each in their respective part, to confirmation by be complied with up to the Agent) with respect to: Time of Closing; and (i) the incorporation, existence representations and good standing warranties of such Subsidiary; (ii) the authorized Corporation and issued Kitrinor contained in this Agreement shall be true and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable correct in all reasonable material respects to the Agent and its legal counsel;
(e) the Agent shall have received at as of the Time of Closing on with the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer same force and Chief Financial Officer effect as if made at and as of the Company or any other senior officer(s) Time of the Company as may be acceptable Closing after giving effect to the Agent, in form and content satisfactory transactions contemplated by this Agreement except to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice extent such representations and warranties were made as of Articles a prior date in which case they shall be true and Articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied correct in all material respects with all the covenantsas ofsuch date.
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation of the Agent to complete the Offering hereunder and of the Purchasers Subscribers to purchase (i) the Initial Special Warrants Debentures at the Closing Time of Closing on the each Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s Option Closing Date, shall will be subject to the following:
(a) The the Agent will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel Agent's Counsel dated and delivered the Closing Date, Date from the Company’s Canadian Corporation's counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any Qualifying the Offering Jurisdiction where the Company’s Corporation's counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent and its counselAgent's Counsel, acting reasonably, with respect to the following matters:matters:
(i) each of the Company Corporation and the Subsidiary is incorporated and validly existing under the laws British Columbiaof the jurisdiction in which it was incorporated, amalgamated or continued, as the case may be, and has all requisite corporate power and capacity to carry on its business the Business as now conducted and to own, lease and operate its property and assets;
(ii) as to the authorized and issued capital of the CompanyCorporation and the Subsidiary, and with respect to the Subsidiary the ownership thereof;
(iii) the Initial Special Warrants Debentures have been duly and validly created, authorized and issuedissued and are outstanding as fully paid securities of the Corporation;
(iv) the Additional Special Warrants Unit Shares comprising the Units have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, allotted and reserved for issuance and, upon the deemed exercise issue thereof upon conversion of the Special Warrants Debentures in accordance with the terms of the Special Warrant Indenture, or Debenture Certificates will be validly issued and outstanding as fully paid and non-assessable common shares in the exercise capital of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issuedCorporation;
(viv) the Warrants comprised in comprising the Units (including for certainty, any Additional Units) have been authorized validly authorized, created and reserved for issuance and, upon the deemed exercise issue thereof upon conversion of the Special Warrants Debentures in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, Debenture Certificates will be duly and validly issued and outstanding as fully paid and non-assessable securities in the capital of the CompanyCorporation;
(viivi) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, validly allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, Certificate will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares common shares in the capital of the CompanyCorporation;
(vii) the Broker Warrants have been validly created, authorized and issued as fully paid securities of the Corporation;
(viii) the Broker Shares underlying the Broker Warrants have been validly allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Broker Warrants in accordance with the terms of the Broker Warrant Certificate, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Corporation;
(ix) the Finance Fee Shares, if any, have been validly issued as fully paid and non- assessable common shares of the Corporation;
(x) the form and terms of the (i) definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications;
(xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Common Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice of Articles and Articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenants
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. (1) The obligation of the Agent to complete the Offering and of the Purchasers Underwriter’s obligations to purchase (i) the Initial Special Warrants Purchased Units at the Closing Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s Option Closing Date, shall be subject to the followingfollowing conditions, which conditions are for the sole benefit of the Underwriter and may be waived in writing in whole or in part by the Underwriter:
(a) The Agent will receive the Underwriter shall have received at the Closing Time of Closing on the Closing Datefavourable legal opinions, a legal opinion addressed to the PurchasersUnderwriter and to the Underwriter’s Counsel, the Agent and its counsel dated the Closing Date, from the Company’s Canadian counsel, DLA Piper (Canada) LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent Underwriter and its counselthe Underwriter’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 Jurisdictions, which counsel in turn may rely upon the opinions of local counsel where they deem such reliance proper (or alternatively make arrangements to have such opinions directly addressed to the Underwriter and the Underwriter’s Counsel), 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, the Transfer Agent and the Warrant Agent, to the effect that (or as to, as applicable), based upon customary assumptions and subject to customary qualifications:
(i) the Company Corporation is incorporated a corporation incorporated, existing and validly existing in good standing under the laws Laws of the Province of British Columbia, Columbia and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assetsassets (including as described in the Offering Documents) and to execute and deliver this Agreement and perform its obligations hereunder;
(ii) as to the authorized and issued share capital of the CompanyCorporation and the Subsidiary;
(iii) the Initial Special Common Shares issuable upon the exercise or conversion of the Offered Units, and Unit Warrants have been duly authorized and, when issued and delivered, will be validly created, authorized issued by the Corporation and issuedoutstanding as fully paid and non- assessable shares;
(iv) the Additional Special Warrants have been duly and validly created, authorized and reserved for issuance, and upon the exercise attributes of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Offered Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the Company;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Broker Warrants and Warrants (if any) have been approved by the directors of the Company and comply are consistent in all material respects with the rules description of the CSE Offered Units and the Business Corporations Act (British Columbia)Broker Warrants in the Final Prospectus;
(ixv) the Company has all necessary corporate power action has been taken by the Corporation to authorize the execution and capacity: (i) to execute and deliver delivery of each of the Transaction Offering Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise filing thereof under Canadian Securities Laws in each of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; applicable Qualifying Jurisdictions;
(vi) all necessary corporate action has been taken by the Corporation to create, allot, reserve for issuance authorize the execution and issue the Unit Shares delivery of this Agreement and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise performance of the Warrants;
(x) the Company Corporation’s obligations hereunder and this Agreement has been duly authorized, executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicableCorporation, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company Corporation, enforceable against the Company Corporation in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable remedies when equitable remedies are sought and subject to usual and other customary qualifications; provided, however, that no opinion need be expressed on the enforceability of the indemnity and contribution provisions herein;
(xiivii) the execution and delivery of the Transaction Documents this Agreement and the performance of the terms thereof, Corporation’s obligations hereunder and the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issueissuance, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Offered Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, Broker Warrants do not conflict with or and will not result in a breach of (whether 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 constitute a default under under, and do not and will not conflict with:
(aA) any of the terms, conditions or provisions of the Notice articles, notice of Articles articles or Articles by-laws of the CompanyCorporation or the Subsidiary, resolutions as applicable, or, of which counsel is aware, any resolution of any of the shareholders or the board of directors (or committees of directors) or shareholders or any committee thereof) of shareholders agreement to which the Company, Corporation is a party;
(bB) any laws of applicable Laws having force in the Province of British Columbia and Canada;
(viii) to counsel’s knowledge, there are no legal or federal laws governmental proceedings pending or threatened to which the Corporation or its Subsidiary is a party or to which any of Canada their material properties or assets are subject that are required to be described in the Prospectus and are not so described;
(ix) 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 and the notice of articles of the Corporation and the resolution of the Board of Directors relating thereto and meets the requirements of the CSE and, if applicable, the share certificate representing the Common Shares delivered at the Closing Time has been duly executed and delivered by or on behalf of the Corporation;
(x) the form of definitive warrant certificate representing the Unit Warrants has been duly approved and adopted by the Corporation, complies with applicable Law, the articles and the notice of articles of the Corporation and the resolution of the Board of Directors relating thereto and meets the requirements of the CSE and, if applicable, the warrant certificate representing the Unit Warrants delivered at the Closing Time has been duly executed and delivered by or on behalf of the Corporation;
(xi) that the statements made under the heading “Eligibility for Investment” in the Final Prospectus are accurate, subject to the assumptions, qualifications, limitations and restrictions set out therein;
(xii) that, subject to the qualifications, assumptions, limitations and restrictions referred to under the heading “Certain Canadian Federal Income Tax Considerations” in the Final Prospectus and the statements made therein, to the extent that such statements summarize matters of law or (c) any of legal conclusions, such statements are accurate and fairly summarize the terms, conditions or provisions of the Canopy Agreementmatters described therein in all material respects;
(xiii) the execution Transfer Agent at its principal office in Vancouver, British Columbia has been duly appointed as the transfer agent and delivery registrar of the Credit Agreement and Corporation for the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy AgreementCommon Shares;
(xiv) Odyssey Trust Company is the duly appointed registrar all documents have been filed and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Trust Company has all requisite proceedings have been appointed the special warrant agent in respect of the Special Warrants taken and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or all approvals, permits, consentsconsents and authorizations of appropriate regulatory authorities under Canadian Securities Laws have been obtained to qualify the distribution of the Offered Units, orders the Over-Allotment Option and the Broker Warrants in each of the Qualifying Jurisdictions through investment dealers or authorizations obtained brokers duly registered under the Canadian Securities Laws to permit of each such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance Qualifying Jurisdiction who have complied with the terms relevant provisions of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws of such Qualifying Jurisdiction; and
(xv) such other matters as the Underwriter may reasonably request. To the extent the foregoing opinions are expressed as being limited to permit counsel’s knowledge, such issuanceopinions may be based upon actual knowledge (and without independent inquiry) of the lawyers who sign the opinion letters, the lawyers who have been actively involved in the preparation of the Prospectus and/or closing documents herein and any lawyer who, as to information relevant to a particular opinion issue or confirmation regarding a particular factual matter, is primarily responsible for providing the response concerning that particular opinion issue or confirmation.
(b) the Underwriter shall have received at the Closing Time, a favourable legal opinion addressed to the Underwriter and to the Underwriter’s Counsel, in form and substance satisfactory to the Underwriter and the Underwriter’s Counsel, acting reasonably, dated the Closing Date from the United States counsel to the Corporation, to the effect that (or as to, as applicable), based upon customary assumptions and subject to customary qualifications:
(i) the Subsidiary is a corporation incorporated, existing and in good standing under the Laws of the State of Nevada and has all requisite corporate power, capacity and authority to carry on its business and to own, lease and operate its property and assets (including as described in the Offering Documents) and to execute and deliver this Agreement and perform its obligations hereunder;
(xviiiii) the issuance authorized and issued capital of the Warrant Shares upon exercise Subsidiary; and
(iii) such other matters as the Underwriter may reasonably request.
(c) the Underwriter shall have received at the Closing Time a bring-down comfort letter dated the Closing Date from the Corporation’s Auditors addressed to the Underwriter and the Board of Directors, in form and substance satisfactory to the Warrants Underwriter and the Underwriter’s Counsel, similar to the comfort letter to be delivered to the Underwriter pursuant to and in accordance Section 3(1)(c) with such changes as may be necessary to bring the terms of the Warrant Indenture, including payment of the aggregate exercise price, information therein forward to a date which is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required earlier than two Business Days prior to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject which changes shall be acceptable to the usual qualificationsUnderwriter;
(xxd) if a Qualification Prospectus Supplement qualifying the distribution Underwriter shall have received at the Closing Time certificates dated the Closing Date, signed by the appropriate officers of the Corporation, addressed to the Underwriter and the Underwriter’s Counsel, with respect to the articles and notice of articles of the Corporation, all resolutions of the Board of Directors and other corporate action relating to this agreement and the sale of the Offered Units, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Underwriter may reasonably request;
(e) the Underwriter 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 or any other officer acceptable to the Underwriter addressed to the Underwriter certifying, to the best of the information, knowledge and belief of each person so signing, after having made due inquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that except as disclosed in the Final Prospectus or any Supplementary Material:
(i) since the date of the Final Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: :
(A) there has been no material change (actual, anticipated, contemplated, or threatened, whether financial or otherwise) in the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and Corporation; and
(B) no documents will be required transaction out of the ordinary course of business has been entered into or is pending by the Corporation or its Subsidiary, which is material to be filed, proceedings the Corporation and its Subsidiary taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictionsas a whole;
(xxiii) based on no order, ruling or determination having the provisions effect of suspending the sale or ceasing the trading of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by Common Shares or on behalf any other securities of the Minister Corporation has been issued or made by any Governmental Authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of Finance the Corporation, contemplated or threatened by any Governmental Authority;
(Canadaiii) the Corporation has complied in all material respects with all the terms and conditions of this Agreement on its part to be complied with at or prior to the date hereof, Closing Time;
(iv) the Special Warrants, representations and warranties of the Unit Shares, Corporation contained in this Agreement are true and correct as of the Closing Date with the same force and effect as if made at and as of the Closing Time after giving effect to the transactions contemplated hereby; and
(v) such other matters as the Underwriter may reasonably request.
(f) the Broker Warrants and shall have been issued to the Warrant Shares will be Underwriter;
(g) the Corporation shall have completed the Listing described in the Prospectus;
(h) the Offered Units are qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit profit-sharing plans, registered disability savings plans, registered education savings plans, registered disability savings plans and tax-tax- free savings accounts, each as defined in accounts under the Income Tax Act (each, a “Plan”Canada), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxiii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, directors and is not listed as in default of any requirement officers of the Canadian Securities Laws Corporation shall have executed a lock-up agreement substantially in any of the Qualifying Jurisdictions which maintain such a listform attached as Schedule A hereto (the “Lock-up Agreements”);
(xxiiij) subject only all consents, approvals, permits, authorization or filings as may be required by any Governmental Authority, or any other third party necessary to complete the sale of the Offered Units and the Listing as contemplated herein shall have been made or obtained;
(k) the Underwriter shall have received at the Closing Time such other certificates, statutory declarations, agreements or materials, in form and substance satisfactory to the Standard Listing Conditions, the Unit Shares Underwriter and the Warrant Shares Underwriter’s Counsel, as the Underwriter and the Underwriter’s Counsel may reasonably request;
(l) 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 Underwriter, acting reasonably, as if made at and as of each such Closing Time and the Corporation shall have been listed or approved for listing on fulfilled each of the CSEcovenants contained in this Agreement to the satisfaction of the Underwriter; and
(xxivm) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as Underwriter’s Counsel relating to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice of Articles and Articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Offered Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenants.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligation obligations of the Agent hereunder with respect to complete the Offering will be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole judgment and to the satisfaction (or waiver by the Agent in its sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at the Time of Closing exercise its commercially reasonable efforts to have fulfilled on or prior to the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The the Agent will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel counsel, Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated and delivered on the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent 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 Agent’s counsel:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws British ColumbiaBCBCA, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assetsassets as described in the Amended and Restated Prospectus;
(iiiii) as to the authorized and issued capital of the Company;
(iiiiv) 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 Amended and Restated Prospectus;
(v) the Initial Special Shares have been duly and validly authorized and issued and are outstanding as fully paid and non-assessable shares in the capital of the Company;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly 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 validly created, authorized and issued by the Company;
(vii) the Compensation Options have been duly and validly authorized and granted by the Company and the Compensation Shares, Compensation Warrants and Shares issuable upon the exercise of the Compensation Options and Compensation Warrants, respectively, have been duly and validly allotted and reserved for issuance by the Company and, upon the exercise of the Compensation Options, and Compensation Warrants, as the case may be, the Compensation Shares, Compensation Warrants and Shares will have been duly and validly created, authorized and issued by the Company, and the Compensation Shares and Shares 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;
(viii) the Warrants have been duly and validly created, authorized and issuedissued by the Company;
(ivix) the Additional Special Warrants Warrant Shares have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, and upon the exercise of the Warrants in accordance with the terms of their terms, the Warrant Indenture, including the payment of the aggregate exercise price, Shares will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the CompanyShares;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ixx) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and the Transaction Documents Warrant Indenture and to perform its obligations hereunder and thereunder; (ii) to create, offer, issue issue, sell and sell deliver the Initial Special WarrantsShares and the Initial Warrants comprising the Initial Units; (iii) to create, issue and grant the Purchaser’s Over- Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants issuable upon exercise of the Over-Allotment Option; (iv) to createissue, offer, issue sell and sell deliver the Additional SecuritiesWarrant Shares upon the exercise of the Warrants; (v) to create, allot, reserve for issuance grant and issue the Units upon deemed exercise of the Initial Special Warrants Compensation Options; and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to createoffer, allotissue, reserve for issuance sell and issue deliver the Unit Compensation Shares and the Compensation Warrants underlying comprising the Compensation Units, and the Shares comprising the Compensation Warrants;
(viixi) all necessary corporate action has been taken by the Company to allotauthorize the execution and delivery of each of the Preliminary Prospectus, reserve for issuance the Prospectus, the Amended and issue Restated Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture, and the certificate representing the Compensation Options, and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants issuable upon exercise of the Over-Allotment Option, and the Warrant Shares issuable upon exercise of the Additional Warrants;
(x) , the Company has duly executed creation and delivered grant of the Transaction Documents and authorized Compensation Options, the performance of its obligations thereunder, including the creation, issuanceissue, sale and delivery of the Initial Special Warrants, Compensation Shares and the creation, issuance Compensation Warrants comprising the Compensation Units and grant the Common Shares issuable upon exercise of the Purchaser’s OptionCompensation Warrants and the offering, the creation, issuanceissue, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon the exercise of the Warrants;
(xi) , and each of this Agreement and the Transaction Documents Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualificationsthe Qualification;
(xiixiii) each certificate representing the Compensation Options constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Qualification;
(xiv) the execution and delivery of the Transaction Documents this Agreement and the performance Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offeroffering, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creationcreation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Securities Shares and Additional Warrants issuable upon exercise of the Purchaser’s Over-Allotment Option, the issue creation and grant of the Compensation Options, the issue, sale and delivery of the Unit Compensation Shares and the Compensation Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicableCompensation Units, and the issue offering and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the other transactions contemplated by this Agreement and the Transaction DocumentsWarrant Indenture, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (ai) any of the terms, conditions or provisions of the Notice constating documents, articles or notice of Articles or Articles articles of the Company, (ii) of which such counsel is aware, any resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (biii) any the laws of the Province of British Columbia or and the federal laws of Canada applicable therein, or (civ) of which such counsel is aware, any judgement, order or decree of any Canadian federal, provincial or local government body, agency or court having jurisdiction over the terms, conditions or provisions of the Canopy AgreementCompany;
(xiiixv) the execution form and delivery terms of the Credit Agreement definitive certificate representing the Common Shares, the Warrants and the fulfillment Compensation Options have been approved by the directors of the terms thereofCompany and comply in all material respects with the BCBCA, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any the constating documents of the terms, conditions or provisions Company and the rules of the Canopy AgreementCSE;
(xivxvi) Odyssey AST Trust Company (Canada) is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Common Shares and AST Trust Company has been (Canada) is the duly appointed the special warrant agent in respect of the Special Warrants and as warrant registrar and transfer agent in respect of for the Warrants;
(xvixvii) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Compensation Options and to qualify the distribution of the Initial Shares and the Initial Warrants comprising the Over-Allotment Option and the Additional Shares and the Additional Warrants issuable upon exercise of the Over-Allotment Option, in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xviii) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions Warrant Shares in accordance with and pursuant to the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, terms and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance conditions of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no authorization, approval, permit or approvals, permits, consents, orders or authorizations consent of the Securities Commissions is required to be obtained by the Company under the Canadian Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuanceissuance of the Warrant Shares;
(xviiixix) as to the issuance of the Compensation Shares and the Compensation Warrants comprising the Compensation Units being exempt from the prospectus requirements of Applicable Securities Laws and being freely tradeable;
(xx) the first trade in the Warrant Shares upon exercise of underlying the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws, Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no approval, permit, consent or approvals, permits, consents, orders or authorizations authorization of regulatory authorities is required to be obtained by the Company under the Canadian Applicable Securities Laws of the Qualifying Jurisdictions to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained trade through registrants registered under Canadian Applicable Securities Laws in connection who have complied with such laws and the first trade terms and conditions of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Sharestheir registration, provided that four (4i) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if such trade is not a Qualification Prospectus Supplement qualifying the distribution “control distribution” as that term is defined in National Instrument 45-102 – Resale of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings planssuch trade, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxiiii) the Company is a “reporting issuer”, or its equivalent, in each issuer (as defined under Applicable Securities Laws) at the time of the Qualifying Jurisdictionssuch first trade, and (iii) such first trade is not listed as a transaction or series of transactions involving a purchase and sale or a repurchase and resale in default the course of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such or incidental to a listdistribution;
(xxiiixxi) subject only to the Standard Listing Conditions, the Unit Shares, the Compensation Shares, the Warrant Shares and the Warrant Shares Warrants, have been conditionally listed or approved for listing on the CSE;
(xxii) that the summary under the heading “Certain Canadian Federal Income Tax Considerations” in the Amended and Restated Prospectus is a fair and adequate summary of the principal Canadian federal income tax considerations generally applicable to the acquisition, holding and disposition of the Shares, Warrants and Warrant Shares, subject to the qualifications, assumptions, limitations and understandings set out in such summary; and
(xxivxxiii) as to all other legal matters reasonably requested by counsel confirming that the statements under the heading “Eligibility for Investment” in the Amended and Restated Prospectus, subject to the Agent prior to qualifications, assumptions and limitations set out under such heading, constitute a fair and adequate description of status of the applicable Time of ClosingShares, Warrants and Warrant Shares as “qualified investments” under the Income Tax Act (Canada) and its regulations. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Offered Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation existence of, each of the Subsidiaries (which counselSubsidiary, in turn may rely, only as addressed to matters of fact, on certificates of officers of such Subsidiaries, as appropriate the Agent and subject legal counsel to confirmation by the Agent) Agent with respect to: (i) the incorporation, existence and good standing of such Subsidiarythe Subsidiaries; (ii) the authorized and issued and outstanding securities of such Subsidiary the Subsidiaries and the holders of such outstanding securitiessecurities thereof held by the Company or a Subsidiary; (iii) the corporate power and capacity of such Subsidiary the Subsidiaries to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(ec) if any Initial Units or Additional Units are sold to purchasers in the United States, the Agent will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States counsel to the Company, to the effect that no registration of the Initial Units and Additional Units offered and sold to purchasers in the United States will be required under the U.S. Securities Act if made in accordance with this Agreement including the attached Schedule “A”, such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel, it being understood that such counsel need not express its opinion with respect to any subsequent re-sale of such Initial Units and Additional Units;
(d) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date or the Option Closing Date, as applicable, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice articles and notice of Articles and Articles articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to relevant to, among other things, the issuance, issue and sale and delivery of the Initial Special Offered Units, the Shares, the Warrants, the issuance and grant of the Purchaser’s OptionWarrants Shares, the issuanceCompensation Options, sale and delivery of the Additional Securities Compensation Units, to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(fe) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) one Business Day prior to of the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each in respect of the Company and the Subsidiaries;
(f) the Company shall deliver “bring down” comfort letters, addressed to the Agent, dated the Closing Date, in form and substance satisfactory to the Agent, bringing forward to a date not more than two Business Days prior to the Closing Date, the information contained in the comfort letters referred to in Section 5(a)(iv) hereof;
(g) the Company shall deliver to the Agent, at each applicable Time of Closingthe Closing Time, certificates dated the Closing Date and or the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) the Amend
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation following are conditions precedent to the obligations of the Agent Underwriters to complete the Offering Closing and to purchase and/or arrange for the purchase of the Purchasers to purchase (i) the Initial Special Warrants at the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Offered Securities at each applicable Closing Time, and which conditions may be waived in writing in whole or in part by the Time of Closing on the Purchaser’s Option Closing Date, shall be subject to the followingUnderwriters:
(a) The Agent will receive at the Time of Closing Corporation shall cause its counsel to deliver to the Underwriters favourable legal opinions dated and delivered on the each applicable Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel dated the Closing Date, from the Company’s Canadian counsel, DLA Piper (Canada) LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent and its counsel, Underwriters acting reasonably, with respect to the following matters:
(i) the Company Corporation is incorporated a “reporting issuer”, or its equivalent, in each of the Qualifying Provinces and validly it is not on the list of defaulting reporting issuers maintained by the Canadian Securities Regulators;
(ii) the Corporation is a corporation existing under the laws Business Corporations Act (British Columbia, ) and has all requisite corporate power and capacity to carry on its business as now conducted and to own, lease and operate its property properties and assets;
(iiiii) each Subsidiary is a corporation existing under the laws of Nevada and has all requisite corporate power to carry on its business as now conducted and to own, lease and operate its properties and assets;
(iv) the authorized and issued and outstanding share capital of the CompanyCorporation and each Subsidiary, and as to the holder of the issued and outstanding share capital of each Subsidiary;
(iiiv) the Initial Special Corporation has all necessary corporate capacity, power and authority: (A) to execute and deliver this Agreement, the Warrant Indenture, the Broker Warrant Certificates and perform its obligations hereunder and thereunder, (B) to create, issue and sell, as applicable, the Offered Securities, (C) to grant the Over- Allotment Option, and (D) to issue the Broker Warrants;
(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) upon the payment therefor, the Unit Shares have been validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(viii) the Warrants have been duly and validly created, created and issued and the Warrant Shares have been reserved and authorized and issued;
(iv) the Additional Special Warrants have been duly and validly created, authorized and reserved allotted for issuance, issuance and upon the exercise of payment therefor and the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, issue thereof upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms provisions of the Warrant Indenture, including the payment of the aggregate exercise price, Warrant Shares will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares shares in the capital of the CompanyCorporation;
(viiiix) the form Broker Warrants have been duly and terms validly created and issued;
(x) the Broker Unit Shares have been reserved and authorized and allotted for issuance and upon the payment therefor and the issue thereof upon exercise of the definitive certificate representing Broker Warrants in accordance with the Subordinate Voting provisions of the Broker Warrant Certificate, the Broker Unit Shares will be validly issued as fully paid and non- assessable shares in the capital of the Corporation;
(xi) the Broker Unit Warrants have been duly and validly created and authorized for issuance upon the payment therefor and the certificate(sissue thereof upon exercise of the Broker Warrants in accordance with the provisions of the Broker Warrant Certificate;
(xii) representing the Special Warrants and Warrants (if any) Broker Shares have been approved reserved and authorized and allotted for issuance and upon the payment therefor and the issue thereof upon exercise of the Broker Unit Warrant in accordance with the provisions of the Warrant Indenture, the Broker Shares will be validly issued as fully paid and non-assessable shares in the capital of the Corporation;
(xiii) this Agreement, the Warrant Indenture and the Broker Warrant Certificates have been duly executed and delivered by the directors Corporation and constitute legal, valid and binding obligations of the Company Corporation enforceable against it in accordance with their respective terms, subject to bankruptcy, insolvency and comply 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 all material respects with the rules discretion of a court of competent jurisdiction, that enforcement of rights to indemnity, contribution and waiver of contribution set out in this Agreement may be limited by applicable law and that enforceability is subject to the provisions of the CSE and the Business Corporations Act Limitations Act, 2002 (British Columbia);
(ixxiv) the Company has all necessary corporate power execution and capacity: (i) to execute delivery of this Agreement, the Warrant Indenture, the Broker Warrant Certificates and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise fulfilment of the Initial Special Warrants terms hereof and any Additional Special Warrants or due exercise of thereof by the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares Corporation and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Offered Securities to be issued and sold by the Company upon exercise Corporation at the Closing Time, the grant of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Over- Allotment Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications;
(xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Broker Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or and will not result in a breach of (whether or a 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 constitute a default under under, and do not and will not conflict with: (aA) the constating documents of the Corporation; (B) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, Corporation; or (bC) any laws of the Province of British Columbia applicable corporate law or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting SharesSecurities Laws;
(xv) Odyssey Trust Company has been appointed the special warrant agent rights, privileges, restrictions and conditions attaching to the Offered Securities, the Over-Allotment Option and the Broker Warrants are accurately summarized in respect of all material respects in the Special Warrants Preliminary Prospectus and as warrant agent in respect of the WarrantsFinal Prospectus;
(xvi) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Provinces have been obtained by the Corporation to qualify the distribution to the public of the Offered Securities in each of the Qualifying Provinces through persons who are registered under applicable Securities Laws and who have complied with the relevant provisions of such applicable Securities Laws and to qualify the grant of the Over-Allotment Option and the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities Broker Warrants to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and saleUnderwriters;
(xvii) the issuance by the Corporation of the Warrant Shares upon due exercise of the Warrants, the issuance of the Broker Unit Shares and the Broker Unit Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with upon the terms of the Special Warrant Indenture or the due exercise of the Purchaser’s Option after Broker Warrants and the Qualification Date, as applicable, issuance of the Broker Shares upon the due exercise of the Broker Unit Warrants is exempt from from, or is not subject to, the prospectus and registration requirements of Canadian the Securities Laws of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken or approvalstaken, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian the Securities Laws of the Qualifying Provinces in connection with therewith;
(xviii) the first trade of the Special Warrants, the Unit Shares, the Warrantsin, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution resale of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company Broker Unit Shares, the Broker Unit Warrants and the Broker Shares is exempt from, or is not subject to, the prospectus requirements of the Securities Laws of the Qualifying Provinces and no filing, proceeding or approval will need to be made, taken or obtained under such laws in connection with any such trade, provided that the trade is not a “control distribution” (as defined in National Instrument 45-102 – Resale of Securities) and the Corporation is a public corporation for purposes reporting issuer at the time of the Tax Acttrade;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiiixix) subject only to the Standard Listing Conditions, the Unit Shares, Warrant Shares, Broker Unit Shares and the Warrant Broker Shares have been listed or conditionally approved for listing on the CSETSX;
(xx) Computershare Trust Company of Canada has been duly appointed as the warrant agent for the Warrants and the Broker Unit Warrants; and
(xxivxxi) as to all other legal matters reasonably requested by counsel subject to the Agent prior qualifications and assumptions set out therein, the statements set forth in the Final Prospectus under the caption “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations”, insofar as they purport to describe the applicable Time provisions of Closingthe laws referred to therein, are fair summaries of the matters discussed therein. In connection with such opinion, counsel to the Company Corporation may rely on the opinions of local counsel in the Qualifying Jurisdictions Provinces acceptable to counsel to the AgentUnderwriters, acting reasonably, as to certain corporate and securities matters relating to the Corporation and as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Offered Securities, the grant of the Over-Allotment Option and the issuance of the Broker Warrants, or opinions may be given directly by local counsel of the Company Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel they are qualified to practice practise and may rely, to the extent appropriate in the circumstances and only circumstances, as to matters of fact, fact on certificates of officers of the Company Corporation and others;
(b) if any Units are offered and sold pursuant to Schedule “A” to this Agreement, the Agent Corporation shall have received at the Time of Closing on the Closing Date, cause a favourable legal opinion addressed to be delivered to the Agent Underwriters by the Corporation’s United States counsel, such opinion to be subject to such qualifications and assumptions as the Purchasers, Underwriters may agree and in form and substance satisfactory to the AgentUnderwriters, acting reasonably, to the effect that no registration of the Unit Shares or Warrants offered and sold in the United States or to, or for the account or benefit of, any U.S. Person will be required under the U.S. Securities Act in connection with such offer and sale, provided, that the offer and sale of such securities in the United States is made in accordance with Schedule “A” hereto;
(c) the Corporation will have caused a favourable title opinion to be delivered by legal counsel to the Corporation addressed to the Underwriters acceptable in all reasonable respects to the Underwriters, including in respect of the following matters:
(i) the registered ownership of the mining claims, concessions, leases, patents and real properties forming part of the Mining Rights;
(ii) the good standing of the Mining Rights under applicable legislation; and
(iii) the description of all registered encumbrances or liens relating to the Mining Rights;
(d) the Underwriters shall have received a certificate, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company Corporation, or any such other senior officer(s) of the Company Corporation as the Underwriters may be acceptable agree, certifying for and on behalf of the Corporation, to the Agentbest of the knowledge, in form information and content satisfactory to belief of the Agent’s counsel, acting reasonablypersons so signing, with respect to:
: (i) the Notice of Articles articles and Articles by-laws of the Company;
Corporation; (ii) the resolutions of the CompanyCorporation’s board of directors with respect relevant to the issuance, issue and sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Offered Securities to be issued and sold by the Company upon exercise Corporation, the grant of the Purchaser’s Over- Allotment Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Broker Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
and (iii) the incumbency and signatures of signing officers of the CompanyCorporation;
(e) the Corporation shall cause the Corporation’s Auditors to deliver to the Underwriters a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date the information contained in the comfort letter referred to in subsection 6(b)(i);
(f) the Agent shall have received at each applicable Time of Closing, Corporation will deliver a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date Corporation and the Purchaser’s Option Closing Date, as applicable, from each signed on behalf of the Company and the Subsidiaries;
(g) the Company shall deliver to the AgentCorporation, at each applicable Time of Closingbut without personal liability, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company Corporation and the Chief Financial Officer of the Company, Corporation or such other senior officer(s) officers of the Company Corporation as may be acceptable to the AgentUnderwriters, acting reasonably, addressed to the Underwriters and its counsel and dated the Closing Date, in form and content satisfactory to the Underwriters, acting reasonably, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company Corporation has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with or satisfied, other than conditions which have been waived by the Underwriters, at or prior to the Closing Time;
(ii) the representations and warranties of the Corporation contained herein are true and correct as at the Closing Time, with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) 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;
(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 or threatened, whether financial or otherwise) in the business, affairs, operations, assets, 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; 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;
(g) the Corporation will have made and/or obtained all necessary filings, approvals, consents and acceptances to or from, as the case may be, the board of directors, the Securities Regulators and the TSX required to be made or obtained by the Corporation in connection with the Offering, on terms which are acceptable to the Corporation and the Underwriters, acting reasonably, prior to the Closing Date, it being understood that the Underwriters will do all that is reasonably required to assist the Corporation to fulfil this condition;
(h) the Unit Shares, the Warrant Shares, the Broker Unit Shares and the Broker Shares will have been conditionally approved for listing by the TSX, subject only to the Standard Listing Conditions, and will, at the opening of trading on the TSX on the Closing Date, be listed and posted for trading on the TSX;
(i) the Underwriters shall have received a certificate from Computershare Investor Services Inc. and Computershare Trust Company of Canada, as applicable, with respect to its appointment as transfer agent and registrar of the Common Shares, its appointment as Warrant Agent for the Warrants, and as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date;
(j) the Underwriters shall have received a certificate of status or the equivalent in respect of the Corporation and each Subsidiary issued by the appropriate regulatory authority in each jurisdiction in which the Corporation and the Subsidiaries are incorporated;
(k) the Underwriters shall have received a reporting issuer certificate or report for each of the Qualifying Provinces that provide such certificates confirming that the Corporation is a reporting issuer not in default of applicable Securities Laws; and
(l) the Underwriters shall have received executed copies of all the lock-up agreements required by the Underwriters pursuant to Section 12.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligation following are conditions precedent to the obligations of the Agent Agents to complete the Offering Closing and of the Purchasers to purchase (i) the Initial Special Warrants Shares at the Time of Closing on Time, which conditions the Closing Date andCompany covenants and agrees to use its reasonable best efforts to fulfil within the time set out herein therefor, (ii) if applicable, and which conditions may be waived in writing in whole or in part by the Additional Securities at the Time of Closing on the Purchaser’s Option Closing Date, shall be subject to the followingAgents:
(a) The Agent will receive at the Time of Closing Company shall cause its counsel, Stikeman to deliver to the Agents legal opinions dated and delivered on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel dated the Closing Date, from the Company’s Canadian counsel, DLA Piper (Canada) LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent and its counsel, Agents acting reasonably, with respect to the following matters:
(i) the Company is incorporated a “reporting issuer”, or its equivalent, in each of the Qualifying Provinces and validly it is not on the list of defaulting reporting issuers maintained by the Canadian Securities Regulators;
(ii) the Company is a corporation existing under the laws British Columbia, of Yukon and has all requisite corporate power and capacity to carry on its business as now conducted and to own, lease and operate its property and assets;
(iiiii) as to the authorized and issued and outstanding share capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issued;
(iv) the Additional Special Warrants have been duly Company has all necessary corporate capacity, power and validly createdauthority: (A) to execute and deliver this Agreement and the Compensation Option Certificates and to perform its obligations hereunder and thereunder; (B) to create, authorized issue and reserved for issuance, sell the Shares and the Compensation Options; and (C) to issue the Compensation Shares issuable upon the exercise of the Purchaser’s Option Compensation Options in accordance with its their terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) all necessary corporate action has been taken by the Unit Shares comprised in Company to authorize the Units (including for certainty, any Additional Units) have been duly execution and validly created, authorized, and reserved for issuance and, upon the deemed exercise delivery of each of the Special Warrants in accordance Preliminary Prospectus, the Final Prospectus and any Supplementary Material and the filing thereof with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issuedCanadian Securities Regulators;
(vi) upon the Warrants comprised in payment therefor, the Units (including for certainty, any Additional Units) Shares will have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities and non-assessable shares in the capital of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) Compensation Options have been authorized, validly created;
(viii) the Compensation Shares issuable upon the exercise of the Compensation Options have been authorized and allotted and reserved for issuance and, upon the exercise of the Warrants Compensation Options in accordance with the terms of the Warrant Indentureprovisions thereof, including the payment of the aggregate exercise price, such Compensation Shares will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the Company;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia)Common Shares;
(ix) the Company has all necessary corporate power action has been taken by the Company to authorize the execution and capacity: (i) to execute delivery of this Agreement and deliver the Transaction Documents Compensation Option Certificates and perform the performance of its obligations thereunder; (ii) to createhereunder and thereunder and this Agreement and the Compensation Option Certificates have been executed and delivered by the Company and constitute legal, offer, issue valid and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise binding obligations of the Initial Special Warrants Company enforceable against it in accordance with their terms, subject to bankruptcy, insolvency and any Additional Special Warrants or due exercise other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the Purchaser’s Option after qualifications that equitable remedies may be granted in the Qualification Datediscretion of a court of competent jurisdiction and that enforcement of rights to indemnity, as applicable; (vi) to create, allot, reserve for issuance contribution and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise waiver of the Warrantscontribution may be limited by applicable law;
(x) the Company has duly executed rights, privileges, restrictions and delivered conditions attaching to the Transaction Documents Shares are accurately summarized in all material respects in the Final Prospectus;
(xi) all necessary documents have been filed, all requisite proceedings have been taken and authorized the performance of its obligations thereunderall approvals, including the creation, issuance, sale permits and delivery consents of the Initial Special Warrants, the creation, issuance and grant appropriate regulatory authority in each of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold Qualifying Provinces have been obtained by the Company upon exercise to qualify the distribution to the public of the Purchaser’s Option, Shares and the creationgrant, issuance and delivery of the Unit Shares and Warrants Compensation Options to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) Agents in each of the Transaction Documents constitutes a legal, valid Qualifying Provinces through persons who are registered under applicable Securities Laws and binding obligation who have complied with the relevant provisions of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualificationsapplicable Securities Laws;
(xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required Compensation Shares to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the issued upon exercise of the Purchaser’s Option after the Qualification Date, as applicable, Compensation Options is exempt from from, or is not subject to, the prospectus and registration requirements of Canadian the Securities Laws of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken taken, or approvals, permits, consents, orders consents or authorizations obtained by the Company under the Canadian Securities Laws to permit of the Qualifying Provinces in respect of such issuancedistribution;
(xviiixiii) the issuance of first trade in, or resale of, the Warrant Compensation Shares issuable upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, Compensation Options is exempt from from, or is not subject to, the prospectus requirements of Canadian the Securities Laws, Laws of the Qualifying Provinces and no prospectus or other documents are required to be filed, proceedings taken or approvalstaken, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian such Securities Laws in connection with the first trade respect of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualificationssuch trade;
(xxxiv) if a Qualification Prospectus Supplement qualifying subject only to the distribution TSX Listing Conditions, the Shares and the Compensation Shares have been conditionally approved for listing on the TSX;
(xv) the Shares and the Compensation Shares will be listed on the NASDAQ;
(xvi) the execution and delivery of this Agreement and the Compensation Option Certificates, the fulfilment of the Prospectus-Qualified Securities has been filed with terms hereof and thereof by the Securities Commissions prior Company and the issuance, sale and delivery of the Shares to their issuancebe issued and sold by the Company at the Closing Time and the issuance of the Compensation Options and the Compensation Shares 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, and do not and will not conflict with: (A) the Unit Sharesprovisions of any law, statute, rule or regulation to which the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and Company is subject; (B) no the constating documents will be required to be filedof the Company; (C) any resolutions of the shareholders or directors of the Company of which Stikeman has knowledge; or (D) any judgment, proceedings taken order or approvalsdecree of any court, permits, consents governmental agency or authorizations obtained under Canadian Securities Laws in order to permit body or regulatory authority having jurisdiction over the first trade Company of such securities in the Qualifying Jurisdictionswhich Stikeman has knowledge;
(xxixvii) based on Computershare Investor Services Inc. has been duly appointed as the provisions of transfer agent and registrar for the Tax Act in force on Common Shares; and
(xviii) the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for under the purposes of the Income Tax Act at (Canada) and the time of their acquisition regulations thereunder for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company Stikeman may rely on the opinions of local counsel in the Qualifying Jurisdictions Provinces acceptable to counsel to the AgentAgents, acting reasonably, as to certain corporate and securities matters relating to the Company and as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Shares and the Compensation Options or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel they are qualified to practice practise and may rely, to the extent appropriate in the circumstances and only circumstances, as to matters of fact, fact on certificates of officers of the Company and others;
(b) if any Shares are offered and sold by the Agent Agents, through the U.S. Affiliates, in the United States, the Company shall have received at the Time of Closing on the Closing Datecause its United States counsel, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to deliver a favourable legal opinion addressed to the Agent Agents, such opinion to be subject to such qualifications and assumptions as the Purchasers, in form and substance satisfactory to the AgentAgents may agree, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that no registration of the Shares offered and sold in the United States will be required under the U.S. Securities Act in connection with the offer and sale of the Special Warrants does not require registration under Shares in the U.S. Securities Act; United States, provided that such offers and sales are made in compliance accordance with this Agreement and provided further that Schedule “A” hereto, it is being understood that no such counsel need not express its opinion is expressed with respect to any subsequent resale resales of any Special Warrantsthe Shares and may rely, to the extent appropriate in the circumstances, as to matters of fact on certificates of officers of the Company and others;
(c) the Agent Agents shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, Agents in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation ofSubsidiary, each of the Subsidiaries (which counsel, counsel in turn may rely, only as to matters of fact, on certificates of auditors, public officials and officers of such Subsidiariesthe Subsidiary, as appropriate and subject to confirmation by the Agent) appropriate, with respect to: to the following matters:
(i) the incorporationSubsidiary is a corporation existing under the laws of the jurisdiction in which it was incorporated, existence amalgamated or continued, as the case may be, and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the has all requisite corporate capacity, power and capacity of such Subsidiary authority to carry on its business and activities as now conducted and to own own, lease and lease operate its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects and
(ii) as to the Agent authorized share capital of the Subsidiary, as to the issued and its legal counseloutstanding share capital of the Subsidiary and all of the issued and outstanding shares of the Subsidiary are registered directly in the name of the Company;
(ed) the Agent Agents shall have received at the Time a certificate, dated as of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer Corporate Secretary of the Company Company, or any such other senior officer(s) of the Company as the Agents may be acceptable agree, certifying for and on behalf of the Company, to the Agentbest of the knowledge, in form information and content satisfactory belief of the persons so signing, that the copies attached to the Agent’s counsel, acting reasonably, with respect to:
certificate of: (i) the Notice of Articles articles and Articles by-laws of the Company;
; (ii) the resolutions of the Company’s board of directors with respect relevant to the issuance, issue and sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities Shares to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
and (iii) the incumbency and signatures of signing officers of the Company, are true and correct copies;
(e) the Company shall cause the Company’s Auditors to deliver to the Agents a comfort letter, dated as of the Closing Date, in form and substance satisfactory to the Agents, 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 5(a)(iii) hereof;
(f) the Agent Agents shall have received at each applicable Time a certificate, dated as of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company President and the Chief Financial Officer of the Company, or such other senior officer(s) officers of the Company as the Agents may be acceptable to the Agentagree, certifying for and on behalf of the Company Company, to the best of the knowledge, information and without personal liabilitybelief of the persons so signing, after having made due enquiriesenquiry and after having carefully examined the Final Prospectus and any Supplementary Material, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time, with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) receipts or decision documents have been issued by 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 Company 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;
(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, proposed, threatened, whether financial or otherwise) in the assets, liabilities (contingent or otherwise), business, affairs, operations, prospects, capital or control of the Company on a consolidated basis, and (B) no transaction has been entered into by either the Company or the Subsidiary which is material to the Company 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 Prospecutus or which would result in the Final Prospectus not complying with applicable Securities Laws;
(g) the Agents shall have received copies of correspondence indicating that the Company has obtained all necessary approvals for the Shares and Compensation Shares to be listed on the TSX, subject only to the TSX Listing Conditions;
(h) the Agents shall have completed and be satisfied, in their sole discretion, with the results of their due diligence investigations regarding the Company, its business, operations and financial condition and market conditions at the Closing Time;
(i) the Agents shall have received a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date;
(j) the Agents shall have received a certificate of status or the equivalent in respect of the Company and the Subsidiary issued by the appropriate regulatory authority in each jurisdiction in which the Company and the Subsidiary are incorporated;
(k) the Agents shall have received a reporting issuer certificate or report for the Company for each of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia and New Brunswick that provide such certificates confirming that the Company is a reporting issuer not in default of applicable Securities Laws; and
(l) the Agents shall have received the undertakings required to be delivered pursuant to subsection 7(k) hereof.
Appears in 1 contract
Conditions of Closing. The obligation of the Agent to complete the Offering and of the Purchasers Underwriters to purchase (i) the Initial Special Warrants at the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s Option Closing Date, Offered Shares shall be subject to the following:
(a) The Agent will receive Canadian Final Prospectus shall have been timely filed with the Canadian Securities Regulators and a Mutual Reliance Review System Decision Document shall have been obtained in respect thereof and the Registration Statement shall have become effective; and at the Time of Closing no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the SEC, no order having the effect of ceasing or suspending the distribution of the Offered Shares or the trading in the securities of the Corporation or any other securities of the Corporation shall have been issued or proceedings therefor initiated or threatened by any securities commission, securities regulatory authority or stock exchange in Canada or the United States, and any request on the part of the Canadian Securities Regulators or the SEC for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters;
(b) the Corporation shall cause its Yukon counsel, in respect of the laws of the Yukon, and Fasken Martineau DuMoulin LLP in respect of the laws of the Province▇ ▇▇ ▇▇▇▇ish Columbia, Alberta and Ontario, to deliver to the Underwriters and their counsel a legal opinion dated and delivered the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel dated the Closing Date, from the Company’s Canadian counsel, DLA Piper (Canada) LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent Underwriters and its their counsel, acting reasonably, with respect to the following matters:
(i) the Company Corporation is incorporated a "reporting issuer", or its equivalent, in each of the Qualifying Provinces and validly it is not listed as in default of any requirement of the Securities Laws in any of the Qualifying Provinces;
(ii) the Corporation is a corporation existing under the laws British Columbia, of the Yukon Territory and has all requisite corporate power and capacity to carry on its business as now conducted and to own, lease and operate its property and assets;
(iiiii) as to the authorized and issued capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issuedCorporation;
(iv) the Additional Special Warrants have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the Company;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ix) the Company Corporation has all necessary corporate power and capacity: :
(i) to execute and deliver the Transaction Documents this Agreement and perform its obligations thereunderunder this Agreement; and (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; Offered Shares;
(v) all necessary corporate action has been taken by the Corporation to create, allot, reserve for issuance authorize the execution and issue the Units upon deemed exercise delivery of each of the Initial Special Warrants Preliminary Prospectus, the amended Preliminary Prospectus and any Additional Special Warrants or due exercise of the Purchaser’s Option after Prospectus and the Qualification Date, as applicable; filing thereof with the Canadian Securities Regulators;
(vi) to createupon the payment therefor, allot, reserve for issuance the Underwritten Shares will have been validly issued as fully paid and issue the Unit Shares and the Warrants underlying the Unitsnon-assessable, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the WarrantsOver-Allotment Option and payment therefor, the Additional Shares will have been validly issued as fully paid and nonassessable;
(xvii) all necessary corporate action has been taken by the Company has duly executed Corporation to authorize the execution and delivered the Transaction Documents delivery of this Agreement and authorized the performance of its obligations thereunder, including the creation, issuance, sale hereunder and delivery of the Initial Special Warrants, the creation, issuance this Agreement has been executed and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold delivered by the Company upon exercise of the Purchaser’s Option, the creation, issuance Corporation and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company Corporation enforceable against the Company it in accordance with its terms, subject to usual bankruptcy, insolvency and customary qualificationsother 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 may be limited by applicable law;
(xiiviii) the rights, privileges, restrictions and conditions attaching to the Common Shares are accurately summarized in all material respects in the Prospectuses and Registration Statement;
(ix) all necessary documents have been filed, all requisite proceedings have been taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Provinces to qualify the distribution or distribution to the public of the Offered Shares in each of the Qualifying Provinces through persons who are registered under applicable legislation and who have complied with the relevant provisions of such applicable legislation;
(x) subject only to the Standard Listing Conditions, the Offered Shares have been conditionally listed on the TSX;
(xi) the execution and delivery of this Agreement, the Transaction Documents and the performance fulfilment of the terms thereof, hereof by the offer, issue Corporation and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issueissuance, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue Offered Shares to be issued and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated sold by the Transaction Documents, Corporation at the Time of Closing do not conflict with or and will not result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) and do not and will not conflict with any of the terms, conditions or provisions of the Notice of Articles articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any by-laws of the Province of British Columbia or federal laws Corporation;
(xii) Computershare Trust Company of Canada applicable therein, or (c) any of has been duly appointed the terms, conditions or provisions of transfer agent and registrar for the Canopy AgreementCommon Shares;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereofOffered Shares will, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since on the Closing Date, subject to be qualified investments under the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Income Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, plans and registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxiixiv) the Company is a “reporting issuer”statements set forth in the Canadian Final Prospectus under the caption "Canadian Federal Income Tax Considerations", or its equivalent, in each insofar as they purport to describe the provisions of the Qualifying Jurisdictionslaws referred to therein, and is not listed as in default of any requirement are fair summaries of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a listmatters discussed therein;
(xxiiixv) subject only To the knowledge of such counsel, there are no persons with registration rights or other similar rights to have any securities qualified for distribution under Canadian Securities Laws;
(xvi) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency in Canada is necessary or required to be made or obtained by the Corporation in connection with the due authorization, execution and delivery of this Agreement or for the offering, sale or delivery of the Offered Shares;
(xvii) To the knowledge of such counsel, there is not pending or threatened any action, suit, proceeding, inquiry, or investigation, to which the Corporation is a party, or to which the property of the Corporation is subject, before or brought by any court or governmental agency or body, domestic or foreign, which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets of the Corporation or the consummation of the transactions contemplated in this Agreement or the performance by the Corporation of its obligations thereunder;
(xviii) The Canadian Prospectus (excluding the financial statements and other financial data included or incorporated therein or omitted therefrom, as to which such counsel need not express any opinion) complies as to form in all material respects to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSErequirements of Canadian Securities Laws; and
(xxivxix) The documents incorporated by reference in the Canadian Prospectus as amended or supplemented (other than the financial statements and other financial data included or incorporated or deemed to be incorporated therein, as to which such counsel need not express any opinion), when they were filed with the Canadian Securities Regulators, complied as to form in all other legal matters reasonably requested by counsel material respects to the Agent prior to formal requirements of the applicable Time securities laws, rules and regulations of Closing. the Province of Ontario as interpreted and applied by the Canadian Securities Regulators and of the Qualifying Provinces as interpreted and applied by the relevant Canadian Securities Regulators under published policy statements, In connection with such opinion, counsel to the Company Corporation may rely on the opinions of local counsel in the Qualifying Jurisdictions Provinces acceptable to counsel to the AgentUnderwriters, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Offered Shares or opinions may be given directly by local counsel of the Company Corporation with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel they are qualified to practice practise and may rely, to the extent appropriate in the circumstances and only circumstances, as to matters of fact, fact on certificates of officers of the Company Corporation and others;
. In addition to rendering the opinions set forth above, such counsel shall also include a statement to the effect that such counsel has participated in the preparation of the Disclosure Package (bexcept that the reference to "U.S. Amended Preliminary Prospectus" and "U.S. Prospectus Amendment" in the definition of "Disclosure Package" herein shall be replaced with "Canadian Amended Preliminary Prospectus" and "Canadian Prospectus Amendment," as amended or supplemented at the Applicable Time, for the purpose of such counsel's opinion), and the Canadian Prospectus and in conferences with officers and other representatives of the Corporation, U.S. counsel for the Corporation, representatives of the independent accountants for the Corporation, counsel for the Underwriters and representatives of the Underwriters at which the contents of the Disclosure Package and the Canadian Final Prospectus and related matters were discussed and although such counsel has not independently verified, and (except as to those matters and to the extent set forth in the opinions referred to in subsections (xiv) of this Section 10(b)) is not passing upon and does not assume any responsibility for, the factual accuracy, completeness or fairness of the statements contained in the Disclosure Package and Canadian Prospectus, on the basis of such participation, no facts have come to such counsel's attention which have caused such counsel to believe that (i) the Agent shall have received at Disclosure Package, when taken as a whole, as of the Time Applicable Time, contained any untrue statement of Closing on a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, or (ii) as of the date of the Canadian Prospectus and as of the Closing Date, the Canadian Prospectus contains any untrue statement of a favourable material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances in which they are made, not misleading (in each case, other than the financial statements and other financial and statistical information, and the information derived from the reports of or attributed to persons named in the Canadian Prospectus under the heading "Interest of Experts", included or incorporated by reference therein, as to which such counsel need express no belief).
(c) the Corporation shall cause its U.S. counsel, Baker & McKenzie, together with Baker & McKenzie, Caracas, Ve▇▇▇▇▇la, ▇▇ ▇▇▇▇ver to the Underwriters and their counsel a legal opinion addressed to dated and delivered the Agent and the PurchasersClosing Date, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer Underwriters and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s their counsel, acting reasonably, with respect toto the following matters:
(i) the Notice Offered Shares are approved for listing subject to notice of Articles and Articles of issuance on the CompanyAmerican Stock Exchange;
(ii) the resolutions of the Company’s board of directors with respect to the issuanceknowledge of such counsel, sale and delivery there is no franchise, contract or other document of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities a character required to be issued and sold by filed as an exhibit to the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, Registration Statement which is not filed as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; andrequired;
(iii) the incumbency statements included or incorporated by reference in the Amended Preliminary Prospectuses and signatures Final Prospectuses under the heading "Certain United States Federal Income Tax Considerations" and "Risk Factors - The Company determined that it is a "passive foreign investment company"..." insofar as such statements summarize legal matters discussed therein, are accurate and fair summaries of signing such legal matters in all material respects;
(iv) the Registration Statement has become effective under the 1933 Act and the Form F-X was filed with the Commission prior to the effectiveness of the Registration Statement; the filing of the U.S. Final Prospectus and any amendments thereto, has been made in the manner and within the time periods required by Form F-10 and the applicable rules and regulations of the SEC; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement and no proceedings for that purpose have been instituted or threatened by the SEC, and the Registration Statement and the U.S. Final Prospectus (other than the financial statements and other financial and statistical information and the information derived from the reports of or attributed to persons named in the U.S. Preliminary Prospectus and the U.S. Final Prospectus under the heading "Interests of Experts" included or incorporated by reference therein as to which such counsel need express no opinion) as of the Effective Date and the Form F-X appeared on its face to comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder;
(v) the Corporation is not and, after giving effect to the offering and sale of the Offered Shares and the application of the proceeds thereof as described in the U.S. Final Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended;
(vi) no approval or authorization, or filing with any governmental authority of the U.S. is required for transactions contemplated by the Agreement in connection with the sale of the Offered Shares such as have been obtained or made under the 1933 Act, except for such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Offered Shares by the Underwriters in the manner contemplated in this Agreement and in the U.S. Amended Preliminary Prospectus and the U.S. Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(vii) neither the issue and sale of the Offered Shares, nor the transactions contemplated by the Agreement in connection with the sale of the Offered Shares will result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Corporation or its subsidiaries pursuant to, any U.S. federal, Texas or Venezuelan statute, law, rule, regulation, judgment, order or decree applicable to the Corporation or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Corporation or its Subsidiaries or any of its or their properties; and
(viii) to the knowledge of such counsel, no holders of securities of the Corporation have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company;
(f) Corporation and public officials. In addition to rendering the Agent opinions set forth above, such counsel shall have received at each applicable Time of Closing, also include a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, statement to the effect that:
that such counsel has participated in the preparation of the Registration Statement, the Disclosure Package and the U.S. Final Prospectus and in conferences and telephone conversations with officers and other representatives of the Corporation, Canadian counsel for the Corporation, representatives of the independent accountants for the Corporation, counsel for the Underwriters and representatives of the Underwriters during which the contents of the Registration Statement, the Disclosure Package and U.S. Final Prospectus were discussed and although such counsel has not independently verified, and (iexcept as to those matters and to the extent set forth in the opinions referred to in subsection (iii) of this Section 10(c)) is not passing upon and does not assume any responsibility for, the Company has complied factual accuracy, completeness or fairness of the statements contained in all respects with all the covenantsRegistration Statement, the Disclosure Package and U.S. Final Prospectus, on the basis of such participation, there is not reason for such counsel to believe that (
Appears in 1 contract
Conditions of Closing. The obligation obligations of the Agent hereunder with respect to complete the Offering will be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole judgment and to the satisfaction (or waiver by the Agent in its sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at exercise its commercially reasonable efforts to have fulfilled on or prior to the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The Agent will receive at the Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel counsel, Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated and delivered the Closing Date, Date from the Company’s Canadian 's counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any the Qualifying Jurisdiction where the Company’s 's Canadian counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent 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 Agent's counsel:
(i) the Company is incorporated a corporation duly created and validly existing under the laws British ColumbiaBCBCA, amalgamated or continued, as the case may be, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assets;
(ii) as to the authorized and issued capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issued;
(iv) the Additional Special Unit Shares and Warrants comprising the Underlying Units have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, created authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise or deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding outstanding, in the case of the Unit Shares, as fully paid securities and non- assessable Common Shares in the capital of the Company;
(viiv) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Common Shares in the capital of the Company;
(vi) the Compensation Options have been duly and validly created, authorized and issued;
(vii) the Compensation Option Shares underlying the Compensation Options have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Compensation Options in accordance with the terms of the Compensation Option Certificate, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(viii) the Compensation Option Warrants underlying the Compensation Options have been duly and validly created, authorized, allotted and reserved for issuance;
(ix) the Common Shares underlying the Compensation Option Warrants have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Compensation Option Warrants in accordance with the terms thereof, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(x) the form and terms of the definitive certificate representing the Subordinate Voting Common Shares and the certificate(s) certificate representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the BCBCA, the constating documents of the Company and the rules of the CSE and the Business Corporations Act (British Columbia)CSE;
(ixxi) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and Warrants comprising the Warrants underlying Underlying Units issuable upon exercise or deemed exercise of the UnitsSpecial Warrants, and (viiiv) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications;
(xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice of Articles and Articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenants
Appears in 1 contract
Conditions of Closing. The obligation of the Agent to complete the Offering hereunder and of the Purchasers Subscribers to purchase (i) the Initial Special Warrants Debentures at the Closing Time of Closing on the each Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s Option Closing Date, shall will be subject to the following:
(a) The the Agent will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel Agent's Counsel dated and delivered the Closing Date, Date from the Company’s Canadian Corporation's counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any Qualifying the Offering Jurisdiction where the Company’s Corporation's counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent and its counselAgent's Counsel, acting reasonably, with respect to the following matters:
(i) each of the Company Corporation and the Subsidiary is incorporated and validly existing under the laws British Columbiaof the jurisdiction in which it was incorporated, amalgamated or continued, as the case may be, and has all requisite corporate power and capacity to carry on its business the Business as now conducted and to own, lease and operate its property and assets;
(ii) as to the authorized and issued capital of the CompanyCorporation and the Subsidiary, and with respect to the Subsidiary the ownership thereof;
(iii) the Initial Special Warrants Debentures have been duly and validly created, authorized and issuedissued and are outstanding as fully paid securities of the Corporation;
(iv) the Additional Special Warrants Unit Shares comprising the Units have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, allotted and reserved for issuance and, upon the deemed exercise issue thereof upon conversion of the Special Warrants Debentures in accordance with the terms of the Special Warrant Indenture, or Debenture Certificates will be validly issued and outstanding as fully paid and non-assessable common shares in the exercise capital of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issuedCorporation;
(viv) the Warrants comprised in comprising the Units (including for certainty, any Additional Units) have been authorized validly authorized, created and reserved for issuance and, upon the deemed exercise issue thereof upon conversion of the Special Warrants Debentures in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, Debenture Certificates will be duly and validly issued and outstanding as fully paid and non-assessable securities in the capital of the CompanyCorporation;
(viivi) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, validly allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, Certificate will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares common shares in the capital of the CompanyCorporation;
(vii) the Broker Warrants have been validly created, authorized and issued as fully paid securities of the Corporation;
(viii) the Broker Shares underlying the Broker Warrants have been validly allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Broker Warrants in accordance with the terms of the Broker Warrant Certificate, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Corporation;
(ix) the Finance Fee Shares, if any, have been validly issued as fully paid and non- assessable common shares of the Corporation;
(x) the form and terms of the (i) definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications;
(xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Common Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice of Articles and Articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenants
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation obligations of the Agent hereunder with respect to complete the Offering will be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole judgment and to the satisfaction (or waiver by the Agent in its sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at the Time of Closing exercise its commercially reasonable efforts to have fulfilled on or prior to the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The the Agent will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel counsel, Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated and delivered on the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent 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 Agent’s counsel:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws British ColumbiaBCBCA, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assetsassets as described in the Amended and Restated Prospectus;
(iiiii) as to the authorized and issued capital of the Company;
(iiiiv) 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 Amended and Restated Prospectus;
(v) the Initial Special Shares have been duly and validly authorized and issued and are outstanding as fully paid and non-assessable shares in the capital of the Company;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly 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 validly created, authorized and issued by the Company;
(vii) the Compensation Options have been duly and validly authorized and granted by the Company and the Compensation Shares, Compensation Warrants and Shares issuable upon the exercise of the Compensation Options and Compensation Warrants, respectively, have been duly and validly allotted and reserved for issuance by the Company and, upon the exercise of the Compensation Options, and Compensation Warrants, as the case may be, the Compensation Shares, Compensation Warrants and Shares will have been duly and validly created, authorized and issued by the Company, and the Compensation Shares and Shares 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;
(viii) the Warrants have been duly and validly created, authorized and issuedissued by the Company;
(ivix) the Additional Special Warrants Warrant Shares have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, and upon the exercise of the Warrants in accordance with the terms of their terms, the Warrant Indenture, including the payment of the aggregate exercise price, Shares will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the CompanyShares;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ixx) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and the Transaction Documents Warrant Indenture and to perform its obligations hereunder and thereunder; (ii) to create, offer, issue issue, sell and sell deliver the Initial Special WarrantsShares and the Initial Warrants comprising the Initial Units; (iii) to create, issue and grant the Purchaser’s Over- Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants issuable upon exercise of the Over-Allotment Option; (iv) to createissue, offer, issue sell and sell deliver the Additional SecuritiesWarrant Shares upon the exercise of the Warrants; (v) to create, allot, reserve for issuance grant and issue the Units upon deemed exercise of the Initial Special Warrants Compensation Options; and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to createoffer, allotissue, reserve for issuance sell and issue deliver the Unit Compensation Shares and the Compensation Warrants underlying comprising the Compensation Units, and the Shares comprising the Compensation Warrants;
(viixi) all necessary corporate action has been taken by the Company to allotauthorize the execution and delivery of each of the Preliminary Prospectus, reserve for issuance the Prospectus, the Amended and issue Restated Prospectus and any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture, and the certificate representing the Compensation Options, and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants issuable upon exercise of the Over-Allotment Option, and the Warrant Shares issuable upon exercise of the Additional Warrants;
(x) , the Company has duly executed creation and delivered grant of the Transaction Documents and authorized Compensation Options, the performance of its obligations thereunder, including the creation, issuanceissue, sale and delivery of the Initial Special Warrants, Compensation Shares and the creation, issuance Compensation Warrants comprising the Compensation Units and grant the Common Shares issuable upon exercise of the Purchaser’s OptionCompensation Warrants and the offering, the creation, issuanceissue, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon the exercise of the Warrants;
(xi) , and each of this Agreement and the Transaction Documents Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualificationsthe Qualification;
(xiixiii) each certificate representing the Compensation Options constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Qualification;
(xiv) the execution and delivery of the Transaction Documents this Agreement and the performance Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offeroffering, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creationcreation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Securities Shares and Additional Warrants issuable upon exercise of the Purchaser’s Over-Allotment Option, the issue creation and grant of the Compensation Options, the issue, sale and delivery of the Unit Compensation Shares and the Compensation Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicableCompensation Units, and the issue offering and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the other transactions contemplated by this Agreement and the Transaction DocumentsWarrant Indenture, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (ai) any of the terms, conditions or provisions of the Notice constating documents, articles or notice of Articles or Articles articles of the Company, (ii) of which such counsel is aware, any resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (biii) any the laws of the Province of British Columbia or and the federal laws of Canada applicable therein, or (civ) of which such counsel is aware, any judgement, order or decree of any Canadian federal, provincial or local government body, agency or court having jurisdiction over the terms, conditions or provisions of the Canopy AgreementCompany;
(xiiixv) the execution form and delivery terms of the Credit Agreement definitive certificate representing the Common Shares, the Warrants and the fulfillment Compensation Options have been approved by the directors of the terms thereofCompany and comply in all material respects with the BCBCA, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any the constating documents of the terms, conditions or provisions Company and the rules of the Canopy AgreementCSE;
(xivxvi) Odyssey AST Trust Company (Canada) is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Common Shares and AST Trust Company has been (Canada) is the duly appointed the special warrant agent in respect of the Special Warrants and as warrant registrar and transfer agent in respect of for the Warrants;
(xvixvii) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Compensation Options and to qualify the distribution of the Initial Shares and the Initial Warrants comprising the Over-Allotment Option and the Additional Shares and the Additional Warrants issuable upon exercise of the Over-Allotment Option, in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xviii) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions Warrant Shares in accordance with and pursuant to the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, terms and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance conditions of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no authorization, approval, permit or approvals, permits, consents, orders or authorizations consent of the Securities Commissions is required to be obtained by the Company under the Canadian Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuanceissuance of the Warrant Shares;
(xviiixix) as to the issuance of the Compensation Shares and the Compensation Warrants comprising the Compensation Units being exempt from the prospectus requirements of Applicable Securities Laws and being freely tradeable;
(xx) the first trade in the Warrant Shares upon exercise of underlying the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws, Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no approval, permit, consent or approvals, permits, consents, orders or authorizations authorization of regulatory authorities is required to be obtained by the Company under the Canadian Applicable Securities Laws of the Qualifying Jurisdictions to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained trade through registrants registered under Canadian Applicable Securities Laws in connection who have complied with such laws and the first trade terms and conditions of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Sharestheir registration, provided that four (4i) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if such trade is not a Qualification Prospectus Supplement qualifying the distribution “control distribution” as that term is defined in National Instrument 45-102 – Resale of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings planssuch trade, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxiiii) the Company is a “reporting issuer”, or its equivalent, in each issuer (as defined under Applicable Securities Laws) at the time of the Qualifying Jurisdictionssuch first trade, and (iii) such first trade is not listed as a transaction or series of transactions involving a purchase and sale or a repurchase and resale in default the course of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such or incidental to a listdistribution;
(xxiiixxi) subject only to the Standard Listing Conditions, the Unit Shares, the Compensation Shares, the Warrant Shares and the Warrant Shares Warrants, have been conditionally listed or approved for listing on the CSE;
(xxii) that the summary under the heading “Certain Canadian Federal Income Tax Considerations” in the Amended and Restated Prospectus is a fair and adequate summary of the principal Canadian federal income tax considerations generally applicable to the acquisition, holding and disposition of the Shares, Warrants and Warrant Shares, subject to the qualifications, assumptions, limitations and understandings set out in such summary; and
(xxivxxiii) as to all other legal matters reasonably requested by counsel confirming that the statements under the heading “Eligibility for Investment” in the Amended and Restated Prospectus, subject to the Agent prior to qualifications, assumptions and limitations set out under such heading, constitute a fair and adequate description of status of the applicable Time of ClosingShares, Warrants and Warrant Shares as “qualified investments” under the Income Tax Act (Canada) and its regulations. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Offered Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation existence of, each of the Subsidiaries (which counselSubsidiary, in turn may rely, only as addressed to matters of fact, on certificates of officers of such Subsidiaries, as appropriate the Agent and subject legal counsel to confirmation by the Agent) Agent with respect to: (i) the incorporation, existence and good standing of such Subsidiarythe Subsidiaries; (ii) the authorized and issued and outstanding securities of such Subsidiary the Subsidiaries and the holders of such outstanding securitiessecurities thereof held by the Company or a Subsidiary; (iii) the corporate power and capacity of such Subsidiary the Subsidiaries to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(ec) if any Initial Units or Additional Units are sold to purchasers in the United States, the Agent will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States counsel to the Company, to the effect that no registration of the Initial Units and Additional Units offered and sold to purchasers in the United States will be required under the U.S. Securities Act if made in accordance with this Agreement including the attached Schedule “A”, such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel, it being understood that such counsel need not express its opinion with respect to any subsequent re-sale of such Initial Units and Additional Units;
(d) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date or the Option Closing Date, as applicable, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice articles and notice of Articles and Articles articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to relevant to, among other things, the issuance, issue and sale and delivery of the Initial Special Offered Units, the Shares, the Warrants, the issuance and grant of the Purchaser’s OptionWarrants Shares, the issuanceCompensation Options, sale and delivery of the Additional Securities Compensation Units, to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(fe) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) one Business Day prior to of the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each in respect of the Company and the Subsidiaries;
(f) the Company shall deliver “bring down” comfort letters, addressed to the Agent, dated the Closing Date, in form and substance satisfactory to the Agent, bringing forward to a date not more than two Business Days prior to the Closing Date, the information contained in the comfort letters referred to in Section 5(a)(iv) hereof;
(g) the Company shall deliver to the Agent, at each applicable Time of Closingthe Closing Time, certificates dated the Closing Date and or the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) the Amended
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation of the Agent to complete the Offering and of the Purchasers to purchase (i) the Initial Special Warrants at the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s Option Closing Date, shall be subject to the following:
(a) The Agent will receive at the Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel dated the Closing Date, from the Company’s Canadian counsel, DLA Piper (Canada) LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent and its counsel, acting reasonably, with respect to the following matters:
(i) the Company is incorporated and validly existing under the laws British Columbia, and has all requisite corporate power and capacity to carry on its business as now conducted and to own, lease and operate its property and assets;
(ii) as to the authorized and issued capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issued;
(iv) the Additional Special Warrants have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the Company;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications;
(xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. 10(a) or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice of Articles and Articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the PurchaserPurchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
one (1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms
Appears in 1 contract
Conditions of Closing. The obligation obligations of the Agent hereunder with respect to complete the Offering will be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole judgment and to the satisfaction (or waiver by the Agent in its sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at the Time of Closing exercise its commercially reasonable efforts to have fulfilled on or prior to the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The the Agent will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel counsel, Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated and delivered on the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent 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 Agent’s counsel:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws British ColumbiaBCBCA, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assetsassets as described in the Prospectus;
(iiiii) as to the authorized and issued capital of the Company;
(iiiiv) 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 Special Shares have been duly and validly authorized and issued and are outstanding as fully paid and non-assessable shares in the capital of the Company;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly 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 validly created, authorized and issued by the Company;
(vii) the Compensation Options have been duly and validly authorized and granted by the Company and the Compensation Shares, Compensation Warrants and Shares issuable upon the exercise of the Compensation Options and Compensation Warrants, respectively, have been duly and validly allotted and reserved for issuance by the Company and, upon the exercise of the Compensation Options, and Compensation Warrants, as the case may be, the Compensation Shares, Compensation Warrants and Shares will have been duly and validly created, authorized and issued by the Company, and the Compensation Shares and Shares 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;
(viii) the Warrants have been duly and validly created, authorized and issuedissued by the Company;
(ivix) the Additional Special Warrants Warrant Shares have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, and upon the exercise of the Warrants in accordance with the terms of their terms, the Warrant Indenture, including the payment of the aggregate exercise price, Shares will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the CompanyShares;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ixx) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and the Transaction Documents Warrant Indenture and to perform its obligations hereunder and thereunder; (ii) to create, offer, issue issue, sell and sell deliver the Initial Special WarrantsShares and the Initial Warrants comprising the Initial Units; (iii) to create, issue and grant the Purchaser’s Over- Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants issuable upon exercise of the Over-Allotment Option; (iv) to createissue, offer, issue sell and sell deliver the Additional SecuritiesWarrant Shares upon the exercise of the Warrants; (v) to create, allot, reserve for issuance grant and issue the Units upon deemed exercise of the Initial Special Warrants Compensation Options; and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to createoffer, allotissue, reserve for issuance sell and issue deliver the Unit Compensation Shares and the Compensation Warrants underlying comprising the Compensation Units, and the Shares comprising the Compensation Warrants;
(viixi) all necessary corporate action has been taken by the Company to allotauthorize the execution and delivery of each of the Preliminary Prospectus, reserve for issuance the Prospectus and issue any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture, and the certificate representing the Compensation Options, and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants issuable upon exercise of the Over-Allotment Option, and the Warrant Shares issuable upon exercise of the Additional Warrants;
(x) , the Company has duly executed creation and delivered grant of the Transaction Documents and authorized Compensation Options, the performance of its obligations thereunder, including the creation, issuanceissue, sale and delivery of the Initial Special Warrants, Compensation Shares and the creation, issuance Compensation Warrants comprising the Compensation Units and grant the Common Shares issuable upon exercise of the Purchaser’s OptionCompensation Warrants and the offering, the creation, issuanceissue, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon the exercise of the Warrants;
(xi) , and each of this Agreement and the Transaction Documents Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualificationsthe Qualification;
(xiixiii) each certificate representing the Compensation Options constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Qualification;
(xiv) the execution and delivery of the Transaction Documents this Agreement and the performance Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offeroffering, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creationcreation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Securities Shares and Additional Warrants issuable upon exercise of the Purchaser’s Over-Allotment Option, the issue creation and grant of the Compensation Options, the issue, sale and delivery of the Unit Compensation Shares and the Compensation Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicableCompensation Units, and the issue offering and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the other transactions contemplated by this Agreement and the Transaction DocumentsWarrant Indenture, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (ai) any of the terms, conditions or provisions of the Notice constating documents, articles or notice of Articles or Articles articles of the Company, (ii) of which such counsel is aware, any resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (biii) any the laws of the Province of British Columbia or and the federal laws of Canada applicable therein, or (civ) of which such counsel is aware, any judgement, order or decree of any Canadian federal, provincial or local government body, agency or court having jurisdiction over the terms, conditions or provisions of the Canopy AgreementCompany;
(xiiixv) the execution form and delivery terms of the Credit Agreement definitive certificate representing the Common Shares, the Warrants and the fulfillment Compensation Options have been approved by the directors of the terms thereofCompany and comply in all material respects with the BCBCA, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any the constating documents of the terms, conditions or provisions Company and the rules of the Canopy AgreementCSE;
(xivxvi) Odyssey AST Trust Company (Canada) is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Common Shares and AST Trust Company has been (Canada) is the duly appointed the special warrant agent in respect of the Special Warrants and as warrant registrar and transfer agent in respect of for the Warrants;
(xvixvii) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Compensation Options and to qualify the distribution of the Initial Shares and the Initial Warrants comprising the Over-Allotment Option and the Additional Shares and the Additional Warrants issuable upon exercise of the Over-Allotment Option, in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xviii) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions Warrant Shares in accordance with and pursuant to the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, terms and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance conditions of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no authorization, approval, permit or approvals, permits, consents, orders or authorizations consent of the Securities Commissions is required to be obtained by the Company under the Canadian Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuanceissuance of the Warrant Shares;
(xviiixix) as to the issuance of the Compensation Shares and the Compensation Warrants comprising the Compensation Units being exempt from the prospectus requirements of Applicable Securities Laws and being freely tradeable;
(xx) the first trade in the Warrant Shares upon exercise of underlying the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws, Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no approval, permit, consent or approvals, permits, consents, orders or authorizations authorization of regulatory authorities is required to be obtained by the Company under the Canadian Applicable Securities Laws of the Qualifying Jurisdictions to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained trade through registrants registered under Canadian Applicable Securities Laws in connection who have complied with such laws and the first trade terms and conditions of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Sharestheir registration, provided that four (4i) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if such trade is not a Qualification Prospectus Supplement qualifying the distribution “control distribution” as that term is defined in National Instrument 45-102 – Resale of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings planssuch trade, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxiiii) the Company is a “reporting issuer”, or its equivalent, in each issuer (as defined under Applicable Securities Laws) at the time of the Qualifying Jurisdictionssuch first trade, and (iii) such first trade is not listed as a transaction or series of transactions involving a purchase and sale or a repurchase and resale in default the course of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such or incidental to a listdistribution;
(xxiiixxi) subject only to the Standard Listing Conditions, the Unit Shares, the Compensation Shares, the Warrant Shares and the Warrant Shares Warrants, have been conditionally listed or approved for listing on the CSE;
(xxii) that the summary under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus is a fair and adequate summary of the principal Canadian federal income tax considerations generally applicable to the acquisition, holding and disposition of the Shares, Warrants and Warrant Shares, subject to the qualifications, assumptions, limitations and understandings set out in such summary; and
(xxivxxiii) as to all other legal matters reasonably requested by counsel confirming that the statements under the heading “Eligibility for Investment” in the Prospectus, subject to the Agent prior to qualifications, assumptions and limitations set out under such heading, constitute a fair and adequate description of status of the applicable Time of ClosingShares, Warrants and Warrant Shares as “qualified investments” under the Income Tax Act (Canada) and its regulations. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Offered Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation existence of, each of the Subsidiaries (which counselSubsidiary, in turn may rely, only as addressed to matters of fact, on certificates of officers of such Subsidiaries, as appropriate the Agent and subject legal counsel to confirmation by the Agent) Agent with respect to: (i) the incorporation, existence and good standing of such Subsidiarythe Subsidiaries; (ii) the authorized and issued and outstanding securities of such Subsidiary the Subsidiaries and the holders of such outstanding securitiessecurities thereof held by the Company or a Subsidiary; (iii) the corporate power and capacity of such Subsidiary the Subsidiaries to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(ec) if any Initial Units or Additional Units are sold to purchasers in the United States, the Agent will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States counsel to the Company, to the effect that no registration of the Initial Units and Additional Units offered and sold to purchasers in the United States will be required under the U.S. Securities Act if made in accordance with this Agreement including the attached Schedule “A”, such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel, it being understood that such counsel need not express its opinion with respect to any subsequent re-sale of such Initial Units and Additional Units;
(d) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date or the Option Closing Date, as applicable, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice articles and notice of Articles and Articles articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to relevant to, among other things, the issuance, issue and sale and delivery of the Initial Special Offered Units, the Shares, the Warrants, the issuance and grant of the Purchaser’s OptionWarrants Shares, the issuanceCompensation Options, sale and delivery of the Additional Securities Compensation Units, to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(fe) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) one Business Day prior to of the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each in respect of the Company and the Subsidiaries;
(f) the Company shall deliver “bring down” comfort letters, addressed to the Agent, dated the Closing Date, in form and substance satisfactory to the Agent, bringing forward to a date not more than two Business Days prior to the Closing Date, the information contained in the comfort letters referred to in Section 5(a)(iv) hereof;
(g) the Company shall deliver to the Agent, at each applicable Time of Closingthe Closing Time, certificates dated the Closing Date and or the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such perso
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation obligations of the Agent Agents hereunder with respect to complete the Offering will be subject to the completion by the Agents of a due diligence review satisfactory to the Agents in their sole judgment and to the satisfaction (or waiver by the Agents in their sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at the Time of Closing exercise its commercially reasonable efforts to have fulfilled on or prior to the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The Agent the Agents will receive at the Closing Time of Closing on the Closing Date, a favourable legal opinion addressed to the Purchasers, the Agent Agents and its counsel dated and delivered on the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent and its counselAgents, 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 Agents’ counsel:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws British ColumbiaOBCA, and has all requisite corporate power power, capacity and capacity authority to carry on its business Business as now conducted and to own, lease and operate its property Assets and assetsProperties as described in the Final Prospectus;
(iiiii) as to the authorized and issued capital of the Company;
(iiiiv) the Initial Special Shares have been duly and validly authorized and, upon the Company having received the consideration for the issue of the Initial Shares, the Initial Shares will be issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(v) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly allotted and reserved for issuance by the Company and, upon the exercise of the Over-Allotment Option for Additional Units 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 validly created, authorized and issued by the Company;
(vi) the Warrants have been duly and validly created, authorized and issued;
(iv) issued by the Additional Special Company and the Warrants Shares issuable upon the exercise of the Warrants have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance by the Company and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenturetheir terms, including the payment of the aggregate exercise priceprice therfor, the Warrant Shares will be have been duly and validly authorized and issued and will be outstanding as fully fully-paid and non-assessable Subordinate Voting Common Shares in the capital of the Company;
(vii) the Broker Warrants have been duly and validly authorized and granted by the Company and the Broker Shares issuable upon the exercise of the Broker Warrants have been duly and validly allotted and reserved for issuance by the Company and, upon the exercise of the Broker Warrants in accordance with their terms, including payment of the exercise price therfor, the Broker Shares will have been duly and validly authorized and issued and will be outstanding as fully-paid and non-assessable Common Shares in the capital of the Company;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and the Transaction Documents Warrant Indenture and to perform its obligations hereunder and thereunder; (ii) to create, offer, issue issue, sell and sell deliver the Initial Special WarrantsShares and the Initial Warrants comprising the Initial Units; (iii) to create, issue and grant the Purchaser’s Over-Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants comprising the Additional Units issuable upon exercise of the Over-Allotment Option; (iv) to createissue, offer, issue sell and sell deliver the Warrant Shares upon the due exercise of the Initial Warrants and Additional SecuritiesWarrants; (v) to create, allot, reserve for issuance grant and issue the Units Broker Warrants; and (vi) to issue, sell and deliver the Broker Shares upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after Broker Warrants;
(ix) all necessary corporate action has been taken by the Qualification DateCompany to authorize the execution and delivery of each of the Preliminary Prospectus, as applicable; (vi) to create, allot, reserve for issuance the Final Prospectus and issue the Unit Shares any Supplementary Material and the Warrants underlying filing thereof with the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the WarrantsSecurities Commissions;
(x) the Company has duly authorized, executed and delivered delivered, this Agreement, the Transaction Documents Warrant Indenture and the Broker Warrant Certificate, and authorized the performance of its obligations hereunder and thereunder, including the creationoffering, issuancecreation (as applicable), issue, sale and delivery of the Initial Special WarrantsShares and the Initial Warrants comprising the Initial Units, the creation, issuance and grant of the Purchaser’s Over-Allotment Option, the creationoffering, issuancecreation (as applicable) issue, sale and delivery of the Additional Securities to be issued Shares and sold by Additional Warrants comprising the Company Additional Units issuable upon exercise of the Purchaser’s Over-Allotment Option, the creationcreation and grant of the Broker Warrants, issuance the issue, sale and delivery of the Unit Broker Shares and Warrants to be issued on deemed upon exercise of the Special Broker Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance offering, issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants;
(xi) , and each of this Agreement and the Transaction Documents Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary certain qualifications, including the Qualification;
(xiixi) the execution and delivery of the Transaction Documents this Agreement and the performance Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offeroffering, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creationcreation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over- Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Securities Shares and Additional Warrants comprising the Additional Units upon exercise of the Purchaser’s Over-Allotment Option, the issue creation and grant of the Broker Warrants, the issue, sale and delivery of the Unit Broker Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Broker Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, offering and the issue issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the other transactions contemplated by this Agreement and the Transaction DocumentsWarrant Indenture, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles articles and by-laws of the Company, resolutions or any applicable corporate law or Applicable Securities Laws;
(xii) the form and terms of the shareholders or (i) definitive certificate representing the board of Warrants and (ii) Broker Warrant Certificate have been approved by the directors (or any committee thereof) of the CompanyCompany and comply in all material respects with the OBCA, (b) any laws the constating documents of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any Company and the rules of the terms, conditions or provisions of the Canopy AgreementTSX;
(xiii) the execution Broker Warrant Certificate constitutes a legal, valid and delivery binding obligation of the Credit Agreement and Company enforceable against the fulfillment of the terms thereof, do not conflict Company in accordance with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the its terms, conditions or provisions of subject to certain qualifications, including the Canopy AgreementQualification;
(xiv) Odyssey Trust Company is the has been duly appointed registrar and transfer as the warrant agent for the Subordinate Voting SharesWarrants;
(xv) Odyssey Trust Company has all necessary documents have been appointed the special warrant agent in respect filed, all requisite proceedings have been taken, all approvals, permits and consents of the Special Warrants appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and as warrant agent all necessary legal requirements have been fulfilled, in respect order to qualify the distribution of the WarrantsInitial Shares and the Initial Warrants comprising the Initial Units, the Over-Allotment Option and the Additional Shares and the Additional Warrants comprising the Additional Units in each of the Qualifying Jurisdictions by or through investment dealers or brokers duly registered under the Applicable Securities Laws who comply with the relevant provisions of such laws and the terms of such registration and who have complied with the relevant provisions of such Applicable Securities Laws;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions Warrant Shares in accordance with and pursuant to the Subscription Agreements terms and conditions of the Warrants is exempt from the prospectus requirement requirements of Canadian the Applicable Securities Laws, Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed (other than specified forms accompanied by requisite filing fees)filed, no proceedings proceeding is required to be taken and no authorization, approval, permit or approvals, permits, consents, orders or authorizations consent of the Securities Commissions is required to be obtained by the Company under the Canadian Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance and saleof the Warrant Shares;
(xvii) the issuance by the Company of the Unit Broker Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with and pursuant to the terms and conditions of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, Broker Warrants is exempt from the prospectus requirements of Canadian the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no authorization, approval, permit or approvals, permits, consents, orders or authorizations consent of the Securities Commissions is required to be obtained by the Company under the Canadian Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuanceissuance of the Broker Shares;
(xviii) the issuance of the first trade in Warrant Shares upon exercise of underlying the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws, Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no approval, permit, consent or approvals, permits, consents, orders or authorizations authorization of regulatory authorities is required to be obtained by the Company under the Canadian Applicable Securities Laws of the Qualifying Jurisdictions to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained trade through registrants registered under Canadian Applicable Securities Laws in connection who have complied with such laws and the first trade terms and conditions of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Sharestheir registration, provided that four (4i) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if such trade is not a Qualification Prospectus Supplement qualifying the distribution “control distribution” as that term is defined in National Instrument 45- 102 – Resale of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings planssuch trade, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxiiii) the Company is a “reporting issuer”, or its equivalent, in each issuer (as defined under Applicable Securities Laws) at the time of the Qualifying Jurisdictionssuch first trade, and (iii) such first trade is not listed as a transaction or series of transactions involving a purchase and sale or a repurchase and resale in default the course of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such or incidental to a listdistribution;
(xxiiixix) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been conditionally listed or approved for listing on the CSETSX;
(xx) the statements set forth in the Prospectus under the heading “Certain Federal Income Tax Considerations” are accurate in all material respects, subject to the limitations, qualifications and assumptions set out therein; and
(xxivxxi) as to the statements set forth in the Prospectus under the heading “Eligibility for Investment” are accurate in all other legal matters reasonably requested by counsel material respects, subject to the Agent prior to the applicable Time of Closinglimitations, qualifications and assumptions set out therein. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the AgentAgents, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Offered Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent Agents shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation existence of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Material Subsidiaries, as appropriate addressed to the Agents and subject legal counsel to confirmation by the Agent) Agents with respect to: (i) the incorporation, existence and good standing of such Subsidiarythe Material Subsidiaries; (ii) the authorized and issued and outstanding securities of such Subsidiary the Material Subsidiaries and the holders of such outstanding securitiessecurities thereof held by the Company or a Subsidiary; (iii) the corporate power and capacity of such Subsidiary the Material Subsidiaries to carry on its business Business and activities and to own and lease its property Assets and assetsProperties; each such opinion to be in form and substance, acceptable in all reasonable respects to the Agent Agents and its legal counsel;
(ec) the Agent Agents shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date or the Option Closing Date, as applicable, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the AgentAgents, in form and content satisfactory to the Agent’s Agents’ counsel, acting reasonably, with respect to:
(i) the Notice of Articles articles and Articles by-laws of the Company;
(ii) the resolutions of the Company’s board of directors with respect to relevant to, among other things, the issuance, issue and sale and delivery of the Initial Special WarrantsOffered Units, the issuance and grant of the Purchaser’s OptionShares, the issuance, sale Warrants and delivery of the Additional Securities to be issued and Broker Warrants sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(fd) the Agent Agents shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) one Business Day prior to of the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each in respect of the Company and the Subsidiaries;
(ge) the Company shall cause its current auditors to deliver to the Agents a “bring down” comfort letter, addressed to the Agents and the board of directors of the Company, dated the Closing Date, in form and substance satisfactory to the Agents, acting reasonably, bringing forward to a date not more than two Business Days prior to the Closing Date or Option Closing Date, as applicable, the information contained in the comfort letters referred to in Section 5(a)(iii) hereof;
(f) the Company shall deliver to the AgentAgents, at each applicable Time of Closingthe Closing Time, certificates dated the Closing Date and or the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers Agents and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the AgentAgents, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein 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 with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) no order, ruling or determination having the effect of suspending the sale or ceasing the trading or prohibiting the sale of the Offered Units or any other securities of the Company (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 or, to the knowledge of such officers, contemplated or threatened by any regulatory authority;
(iv) since the respective dates as of which information is given in the Final Prospectus or any Supplementary Material (A) there has been no material change in the Company or its Subsidiaries, (B) there has been no material and adverse change (financial or otherwise) in the Business, assets (including intangible assets), affairs, operations, prospects, liabilities (contingent or otherwise), capital, properties, condition (financial or otherwise) or results of operations or control of the Company and the Subsidiaries (taken as a whole), and (C) no transaction has been entered into by or affecting the Company or any Subsidiary which is material to the Company and the Subsidiaries (taken as a whole), other than as disclosed in the Final Prospectus or in any Supplementary Material;
(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 mislea
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation obligations of the Agent Agents hereunder with respect to complete the Offering will be subject to the completion by the Agents of a due diligence review satisfactory to the Agents in their sole judgment and to the satisfaction (or waiver by the Agents in their sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at exercise its commercially reasonable efforts to have fulfilled on or prior to the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The Agent Agents will receive at the Time of Closing on the Closing Date, a legal opinion addressed to the PurchasersAgents and their counsel, the Agent Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated and its counsel dated delivered as of the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ + ▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any the Qualifying Jurisdiction where the Company’s Canadian counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent Agents and its their 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 Agents’ counsel:
(i) the Company is incorporated a corporation duly created and validly existing under the laws British ColumbiaBCBCA, amalgamated or continued, as the case may be, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assets;
(ii) as to the authorized and issued capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issued;
(iv) the Additional Special Unit Shares and Warrants comprising the Underlying Units have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, created authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise or deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding outstanding, in the case of the Unit Shares, as fully paid securities and non-assessable Common Shares in the capital of the Company;
(viiv) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Common Shares in the capital of the Company;
(vi) the Compensation Options have been duly and validly created, authorized and issued;
(vii) the Compensation Option Shares underlying the Compensation Options have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Compensation Options in accordance with the terms of the Compensation Option Certificate, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(viii) the Compensation Option Warrants underlying the Compensation Options have been duly and validly created, authorized, allotted and reserved for issuance;
(ix) the Common Shares underlying the Compensation Option Warrants have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Compensation Option Warrants in accordance with the terms thereof, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(x) the form and terms of the definitive certificate representing the Subordinate Voting Common Shares and the certificate(s) certificates representing the Special Warrants and the Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the BCBCA, the constating documents of the Company and the rules of the CSE and the Business Corporations Act (British Columbia)CSE;
(ixxi) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and Warrants comprising the Warrants underlying Underlying Units issuable upon exercise or deemed exercise of the UnitsSpecial Warrants, and (viiiv) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants; (v) to create and issue the Compensation Options; (vi) to allot, reserve for issuance and issue the Compensation Option Shares issuable upon exercise of the Compensation Options; (vii) to allot, reserve for issuance and issue the Compensation Option Warrants issuable upon exercise of the Compensation Options; (viii) to allot, reserve for issuance and issue the Common Shares issuable upon exercise of the Compensation Options Warrants;
(xxii) the Company has duly authorized, executed and delivered delivered, the Transaction Documents and authorized the performance of its obligations thereunderunder the Transaction Documents, including the creation, issuanceoffering, issue, sale and delivery of the Initial Special Warrants, the creation, issuance creation and grant of the Purchaser’s Option, Agents’ Option and the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance issue and delivery of the Unit Shares and Warrants to be issued on comprising the Underlying Units upon exercise or deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification DateWarrants, as applicable, and the issuance and delivery of the Warrant Shares upon exercise of the Warrants;
(xi) , the creation and issuance of the Compensation Options, the issuance and delivery of the Compensation Option Shares upon the exercise of the Compensation Options, the issuance and delivery of the Compensation Option Warrants upon the exercise of the Compensation Options, the issuance and delivery of the Common Shares issuable upon the exercise of the Compensation Option Warrants, and each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualificationsthe Qualification;
(xiixiii) the execution and delivery of the Transaction Documents and the performance fulfillment of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Agents’ Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery sale of the Unit Shares and Warrants comprising the Underlying Units upon the exercise or deemed exercise of the Initial Special Warrants Warrants, the issuance and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue delivery of the Warrant Shares upon exercise of the Warrants, the creation and issuance of the Compensation Options, the issuance and delivery of the Compensation Option Shares upon the exercise of the Compensation Options, the issuance and delivery of the Compensation Option Warrants upon the exercise of the Compensation Options, the issuance and delivery of the Common Shares upon the exercise of the Compensation Option Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreementnotice of articles, articles of incorporation or amalgamation, as applicable, by-laws or resolutions of the shareholders or the board of directors (or any committee thereof) of the Company or any laws of the Province of British Columbia or federal laws of Canada applicable therein;
(xiv) Odyssey Trust subject to the usual qualifications, that except as disclosed in the Disclosure Record, to such counsel’s knowledge, there is no action, suit, proceeding or inquiry before any court, Governmental Authority to which the Company is a party or to which its property is subject which in any way would materially and adversely affect the Company;
(xv) National Securities Administrators Ltd. is the duly appointed registrar and transfer agent for the Subordinate Voting Common Shares;
(xvxvi) Odyssey Trust Company National Securities Administrators Ltd. has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvixvii) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities Warrants to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is and the issuance by the Company of the Compensation Options to the Agents in accordance herewith are exempt from the prospectus requirement requirements of Canadian Applicable Securities Laws, Laws and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Applicable Securities Laws to permit such issuance issuances and salesales;
(xviixviii) the issuance to holders of Special Warrants of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants comprising the Underlying Units pursuant to and in accordance with the terms and conditions of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Applicable Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Applicable Securities Laws to permit such issuance;
(xviiixix) the issuance to the Agents of the Warrant Compensation Option Shares upon exercise of and Compensation Option Warrants comprising the Warrants pursuant to and Compensation Options in accordance with the terms and conditions of the Warrant IndentureCompensation Option certificate, including payment and the issuance to the Agents of the aggregate exercise priceCommon Shares underlying Compensation Option Warrants in accordance with the terms and conditions of the Compensation Option Certificate, is are exempt from the prospectus requirements of Canadian Applicable Securities Laws, Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Applicable Securities Laws to permit such issuance;
(xixxx) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian the Applicable Securities Laws in connection with the first trade of the Special Warrants, Warrants or the Unit Shares, Shares and Warrants comprising the Warrants, Underlying Units or the Warrant Shares or the Compensation Option Shares, Compensation Option Warrants or the Common Shares underlying the Compensation Option Warrants, provided that four (4) months and a day have elapsed lapsed since the Closing Date, subject to the usual qualifications;
(xxxxi) if a Final Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities Underlying Units has been filed with with, and a Final Receipt has been issued by the Securities Commissions BCSC pursuant to the Passport System and provided the Final Qualification Prospectus is delivered to the holder of Special Warrants prior to their issuancethe exercise of the same, the first trade by a holder of: (A) such Unit Shares and Warrants comprising the Unit Underlying Units, the Warrant Shares, the Compensation Option Shares, the Compensation Option Warrants, and the Warrant Common Shares underlying the Compensation Option Warrants, will not be subject to any statutory hold period or restricted period under Canadian Applicable Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian the Applicable Securities Laws in order to permit the first trade of such securities Unit Shares and Warrants comprising the Underlying Units in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by Jurisdictions through registrants registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”)under Canadian Securities Laws who have complied with such laws, provided that at that time, in such sale is not a “control distribution” within the case meaning of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax ActNI 45-102;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying JurisdictionsBritish Columbia and Ontario, and it is not listed as in default of any requirement of the Canadian Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Common Shares and the Warrant Shares have been are listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent Agents prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the AgentAgents, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Special Warrants and Unit Shares and Warrants comprising the Underlying Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) if any Special Warrants are sold in the Agent United States or to, or for the account or benefit of, U.S. Persons, the Agents shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the PurchasersAgents, in form and substance satisfactory to the AgentAgents, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that registration of the Special Warrants and Unit Shares and Warrants comprising the Underlying Units is not required under the U.S. Securities Act in connection with the offer and sale of the such Special Warrants does not require registration under in the U.S. Securities Act; provided that such offers and sales are made in compliance with United States pursuant to this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special WarrantsAgreement;
(c) the Agent Agents shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation formation of, each of Altum Pharmaceuticals Inc., addressed to the Subsidiaries (which counsel, in turn may rely, only as Agents and legal counsel to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) Agents with respect to: (i) the incorporation, incorporation and existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent Agents and its their legal counsel;
(ed) the Agent Agents shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the AgentAgents, in form and content satisfactory to the Agent’s Agents’ counsel, acting reasonably, with respect to:
(i) the Notice notice of Articles articles, articles and Articles by laws of the Company;
(ii) the resolutions of the Company’s board of directors with respect relevant to the issuance, issue and sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities Warrants to be issued and sold by the Company upon exercise of the Purchaser’s OptionCompany, the issuance allotment and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery reservation of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Underlying Units), and the issuance of the Warrant Shares upon exercise of Shares, the WarrantsCompensation Securities, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(fe) the Agent Agents shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
one (1) Business Day prior to of the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each in respect of the Company and the SubsidiariesAltum Pharmaceuticals Inc.;
(gf) the Company shall deliver to the AgentAgents, at each applicable the Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers Agents and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the AgentAgents, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement and the other Transaction Documents on its part to be complied with and satisfied at or prior to the Time of Closing;
(ii) the representations and warranties of the Company contained herein 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 Time of Closing with the same force and effect as if made on and as at the Time of Closing after giving effect to the transactions contemplated hereby;
(iii) to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Special Warrants, Underlying Units, Unit Shares, Warrants, Warrant Shares, Compensation Options or Compensation Option Shares to be issued by the Company has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or th
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation obligations of the Agent hereunder with respect to complete the Offering will be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole judgment and to the satisfaction (or waiver by the Agent in its sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at the Time of Closing exercise its commercially reasonable efforts to have fulfilled on or prior to the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The the Agent will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel counsel, Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated and delivered on the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent 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 Agent’s counsel:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws British ColumbiaBCBCA, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assetsassets as described in the Prospectus and Prospectus Supplement;
(iiiii) as to the authorized and issued capital of the Company;
(iiiiv) the Initial Special rights, privileges, restrictions and conditions attaching to the Common Shares, the Warrants and the Warrant Shares are accurately summarized in all material respects in the Prospectus Supplement;
(v) the Common Shares comprising the Units, and, if applicable, Additional Securities, have been duly and validly authorized and issued and are outstanding as fully paid and non-assessable shares in the capital of the Company;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Securities, and their underlying securities, 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 Common Shares underlying the Additional Securities, 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 Warrants underlying the Additional Securities will have been duly and validly created, authorized and issued by the Company;
(vii) the Compensation Warrants have been duly and validly authorized and granted by the Company and the Common Shares issuable upon the exercise of the Compensation Warrants, have been duly and validly allotted and reserved for issuance by the Company and, upon the exercise of the Compensation Warrants, the Common Shares underlying the Compensation Warrants will have been duly and validly created, authorized and issued by the Company, and the Common Shares underlying the Compensation Warrants will be outstanding as fully-paid and non-assessable shares in the capital of the Company;
(viii) the Warrants have been duly and validly created, authorized and issuedissued by the Company;
(ivix) the Additional Special Warrants Warrant Shares have been duly and validly created, authorized allotted and reserved for issuance, issuance and upon the exercise of the Purchaser’s Option Warrants, in accordance with its their terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Warrant Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the CompanyCommon Shares;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ixx) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and the Transaction Documents Warrant Indenture and to perform its obligations hereunder and thereunder; (ii) to create, offer, issue issue, sell and sell deliver the Initial Special WarrantsCommon Shares and Warrants comprising the Units; (iii) to create, issue and grant the Purchaser’s Over-Allotment Option and offer, issue, sell and deliver the Additional Securities, and their underlying securities, issuable upon exercise of the Over-Allotment Option; (iv) to createissue, offer, issue sell and sell deliver the Additional SecuritiesWarrant Shares upon the exercise of the Warrants; (v) to create, allot, reserve for issuance grant and issue the Units upon deemed exercise of the Initial Special Warrants Compensation Warrants; and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to createoffer, allotissue, reserve for issuance sell and issue deliver the Unit Common Shares and comprising the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Compensation Warrants;
(xxi) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus, the Prospectus Supplement and any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered delivered, this Agreement, the Transaction Documents Warrant Indenture, and the certificate representing the Compensation Warrants, and authorized the performance of its obligations hereunder and thereunder, including the creationoffering, issuancecreation (as applicable), issue, sale and delivery of the Initial Special WarrantsCommon Shares and Warrants comprising the Units, the creation, issuance and grant of the Purchaser’s Over- Allotment Option, the creationoffering, issuancecreation (as applicable) issue, sale and delivery of the Additional Securities to be issued Securities, and sold by the Company their underlying securities, issuable upon exercise of the Purchaser’s Over-Allotment Option, the creationcreation and grant of the Compensation Warrants, issuance the issue, sale and delivery of the Unit Common Shares and Warrants to be issued on deemed issuable upon exercise of the Special Compensation Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance offering, issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants;
(xi) , and each of this Agreement and the Transaction Documents Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualificationsthe Qualification;
(xiixiii) each certificate representing the Compensation Warrants constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Qualification;
(xiv) the execution and delivery of the Transaction Documents this Agreement and the performance Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offeroffering, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creationcreation (as applicable), issue, sale and delivery of the Common Shares and the Warrants comprising the Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Securities Securities, and their underlying securities, issuable upon exercise of the Purchaser’s Over-Allotment Option, the issue creation and grant of the Compensation Warrants, the issue, sale and delivery of the Unit Common Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicableCompensation Warrants, and the issue offering and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the other transactions contemplated by this Agreement and the Transaction DocumentsWarrant Indenture, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (ai) any of the terms, conditions or provisions of the Notice constating documents, articles or notice of Articles or Articles articles of the Company, (ii) of which such counsel is aware, any resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (biii) any the laws of the Province of British Columbia or and the federal laws of Canada applicable therein, or (civ) of which such counsel is aware, any judgement, order or decree of any Canadian federal, provincial or local government body, agency or court having jurisdiction over the terms, conditions or provisions of the Canopy AgreementCompany;
(xiiixv) the execution form and delivery terms of the Credit Agreement definitive certificate representing the Common Shares, Warrants, and the fulfillment Compensation Warrants have been approved by the directors of the terms thereofCompany and comply in all material respects with the BCBCA, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any the constating documents of the terms, conditions or provisions Company and the rules of the Canopy AgreementCSE;
(xivxvi) Odyssey TSX Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Common Shares and TSX Trust Company has been is the duly appointed the special warrant agent in respect of the Special Warrants and as warrant registrar and transfer agent in respect of for the Warrants;
(xvixvii) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Compensation Warrants and to qualify the distribution of the Units and Additional Securities, comprising the Over-Allotment Option, in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xviii) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions Warrant Shares in accordance with and pursuant to the Subscription Agreements terms and conditions of the Warrants and the Warrant Indenture is exempt from the prospectus requirement requirements of Canadian the Applicable Securities Laws, Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed (other than specified forms accompanied by requisite filing fees)filed, no proceedings proceeding is required to be taken and no authorization, approval, permit or approvals, permits, consents, orders or authorizations consent of the Securities Commissions is required to be obtained by the Company under the Canadian Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance and saleof the Warrant Shares;
(xviixix) as to the issuance of the Unit Common Shares underlying the Compensation Warrants being exempt from the prospectus requirements of Applicable Securities Laws and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and being freely tradeable;
(xx) the first trade in accordance with the terms of Warrant Shares underlying the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicableWarrants, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no approval, permit, consent or approvals, permits, consents, orders or authorizations authorization of regulatory authorities is required to be obtained by the Company under the Canadian Applicable Securities Laws of the Qualifying Jurisdictions to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to trade through registrants registered under Applicable Securities Laws who have complied with such laws and in accordance with the terms and conditions of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Sharestheir registration, provided that four (4i) months have elapsed since such trade is not a “control distribution” as that term is defined in National Instrument 45-102 – Resale of Securities at the Closing Datetime of such trade, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (Aii) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period Company is a reporting issuer (as defined under Canadian Applicable Securities Laws) at the time of such first trade, and (Biii) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the such first trade is not a transaction or series of such securities transactions involving a purchase and sale or a repurchase and resale in the Qualifying Jurisdictionscourse of or incidental to a distribution;
(xxi) based on the provisions as to compliance of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf Offering with French language laws of the Minister Province of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax ActQuébec;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Common Shares (including the Common Shares comprising the Units and issuable upon exercise of the Compensation Warrants) and the Warrant Shares Shares, have been conditionally listed or approved for listing on the CSE;
(xxiii) that the summary under the heading “Certain Canadian Federal Income Tax Considerations” in the Prospectus Supplement is a fair and adequate summary of the principal Canadian federal income tax considerations generally applicable to the acquisition, holding and disposition of the Units, Common Shares, Warrants, and Warrant Shares subject to the qualifications, assumptions, limitations and understandings set out in such summary; and
(xxiv) as to all other legal matters reasonably requested by counsel confirming that the statements under the heading “Eligibility for Investment” in the Prospectus Supplement, subject to the Agent prior to qualifications, assumptions and limitations set out under such heading, constitute a fair and adequate description of status of the applicable Time of ClosingUnits, Common Shares, Warrants and Warrant Shares as “qualified investments” under the Income Tax Act (Canada) and its regulations. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation existence of, each of the Subsidiaries (which counselSubsidiary, in turn may rely, only as addressed to matters of fact, on certificates of officers of such Subsidiaries, as appropriate the Agent and subject legal counsel to confirmation by the Agent) Agent with respect to: (i) the incorporation, existence and good standing of such Subsidiarythe Subsidiaries; (ii) the authorized and issued and outstanding securities of such Subsidiary the Subsidiaries and the holders of such outstanding securitiessecurities thereof held by the Company or a Subsidiary; (iii) the corporate power and capacity of such Subsidiary the Subsidiaries to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(ec) if any Units are sold to purchasers in the United States or to, or for the account or benefit of, U.S. Persons the Agent will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States counsel to the Company, to the effect that no registration of the Units offered and sold to purchasers in the United States or to, or for the account or benefit of, U.S. Persons will be required under the U.S. Securities Act if made in accordance with this Agreement including the attached Schedule “B”, such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel, it being understood that such counsel need not express its opinion with respect to any subsequent re-sale of such Units;
(d) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date or the Option Closing Date, as applicable, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice articles and notice of Articles and Articles articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to relevant to, among other things, the issuance, issue and sale and delivery of the Initial Special Units, the Additional Securities and their underlying securities, if applicable, the Common Shares, the Warrants, the issuance and grant of the Purchaser’s OptionWarrant Shares, the issuanceCompensation Warrants, sale and delivery of the Additional Securities Common Shares underlying the Compensation Warrants, to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(fe) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) one Business Day prior to of the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each in respect of the Company and the Subsidiaries;
(f) the Company shall deliver “bring down” comfort letters, addressed to the Agent, dated the Closing Date, in form and substance satisfactory to the Agent, bringing forward to a date not more than two Business Days prior to the Closing Date, the information contained in the comfort letters referred to in Section 5(a)(iv) hereof;
(g) the Company shall deliver to the Agent, at each applicable Time of Closingthe Closing Time, certificates dated the Closing Date and or the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common S
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation of the Agent Underwriter to complete the Offering and of the purchase, or act as agent for Substituted Purchasers to purchase (i) purchase, the Initial Special Warrants Shares at the Closing Time of Closing on the Closing Date and, (ii) if applicable, the and to purchase any Additional Securities Shares at the Closing Time of Closing on the Purchaser’s an Option Closing Date, Date shall be subject to the following:
(a) The Agent the Underwriter will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent Underwriter and its counsel dated and delivered on the Closing Date, Date from the Company’s Canadian Ontario counsel, DLA Piper (Canada) ▇▇▇▇▇ ▇▇▇▇ LLP, and from local counsel (only in respect of matters governed by laws of any the Qualifying Jurisdiction Jurisdictions where the Company’s Ontario counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent Underwriter 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 Underwriter’s counsel:
(i) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws of the Province of British Columbia, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assetsassets as described in the Prospectus;
(iiiii) as to the authorized and issued capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issued;
(iv) the Additional Special Warrants have been duly rights, privileges, restrictions and validly created, authorized and reserved for issuance, and upon conditions attaching to the exercise of Offered Shares are accurately summarized in all material respects in the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issuedProspectus;
(v) the Unit Initial Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, authorized and reserved for issuance and, upon issued and are outstanding as fully paid and non-assessable shares in the deemed exercise capital of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issuedCompany;
(vi) the Warrants comprised in Over-Allotment Option has been duly and validly authorized and granted by the Units (including for certainty, any Company and the Additional Units) Shares issuable upon the exercise of the Over- Allotment Option have been authorized duly and validly allotted and reserved for issuance by the Company and, upon the deemed exercise of the Special Warrants Over-Allotment Option including receipt by the Company of payment in accordance with full therefor, the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, Shares will be have been duly and validly authorized and issued and will be outstanding as fully fully-paid securities and non-assessable shares in the capital of the Company;
(vii) the Warrant Shares underlying the Broker Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorizedduly created, authorized and issued by the Company and the Broker Shares issuable upon the exercise of the Broker Warrants have been duly created, allotted and reserved for issuance by the Company and, upon the exercise of the Warrants in accordance with Broker Warrants, the terms of the Warrant IndentureBroker Shares will have been validly created, including the payment of the aggregate exercise price, authorized and issued and will be duly and validly issued and outstanding as fully fully- paid and non-assessable Subordinate Voting Shares shares in the capital of the Company;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and any certificate representing the Transaction Documents Broker Warrants and to perform its obligations hereunder and thereunder; (ii) to create, offer, issue issue, sell and sell deliver the Initial Special WarrantsShares; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, Over-Allotment Option and offer, issue issue, sell and sell deliver the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Over- Allotment Option; and (iv) to create and grant the Broker Warrants and issue and sell the Broker Shares issuable upon exercise of the Broker Warrants;
(ix) all necessary corporate action has been taken by the Company to authorize the execution and delivery of each of the Preliminary Prospectus, the Prospectus and any Supplementary Material (in both the English and French languages) and the filing thereof with the Securities Commissions;
(x) the Company has duly authorized, executed and delivered delivered, this Agreement and any certificate representing the Transaction Documents Broker Warrants and authorized the performance of its obligations hereunder and thereunder, including the creationoffering, issuanceissue, sale and delivery of the Initial Special WarrantsShares, the creation, issuance and grant of the Purchaser’s Over-Allotment Option, the creationoffering, issuanceissue, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Over-Allotment Option, the creation and grant of the Broker Warrants, and the offering, issue, sale and delivery of the Broker Shares upon exercise of the Broker Warrants;
(xi) each of this Agreement and any certificate representing the Transaction Documents Broker Warrants constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualificationsthe Qualification;
(xii) the execution and delivery of this Agreement and any certificate representing the Transaction Documents Broker Warrants and the performance fulfillment of the terms hereof and thereof, the offeroffering, issue issue, sale and sale delivery of the Initial Special WarrantsShares, the creation, issue and grant of the Purchaser’s Over-Allotment Option, the creationoffer, issue, sale and delivery of the Additional Securities Shares upon the exercise of the Purchaser’s Over-Allotment Option, the issue creation and grant of the Broker Warrants, the offering, issue, sale and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Broker Shares upon exercise of the Broker Warrants, and the consummation of the other transactions contemplated by the Transaction Documentsthis Agreement, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (ai) any of the terms, conditions or provisions of the Notice articles of Articles incorporation or Articles amalgamation, as applicable, or notice of articles of the Company, (ii) resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (biii) any the laws of the Province of British Columbia or and the federal laws of Canada applicable therein, or (civ) of which such counsel is aware, any judgment, order or decree of any Canadian federal, provincial or local government body, agency or court having jurisdiction over the terms, conditions or provisions of the Canopy AgreementCompany;
(xiii) the execution form and delivery terms of the Credit Agreement definitive certificate representing the Common Shares have been approved by the directors of the Company and comply in all material respects with the Business Corporations Act (British Columbia), the articles and notice of articles of the Company and the fulfillment rules of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy AgreementCSE;
(xiv) Odyssey Trust Company Computershare Investor Services Inc. is the duly appointed registrar and transfer agent for the Subordinate Voting Common Shares;
(xv) Odyssey Trust Company has all necessary documents have been appointed the special warrant agent in respect filed, all requisite proceedings have been taken, all approvals, permits and consents of the Special Warrants appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and as warrant agent all necessary legal requirements have been fulfilled, in respect order to qualify the distribution of the WarrantsInitial Shares, the Over-Allotment Option, the Additional Shares and the Broker Warrants in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xvi) as to the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is Broker Shares being exempt from the prospectus requirement requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Applicable Securities Laws to permit such issuance and salebeing freely tradeable;
(xvii) the issuance Initial Shares and Additional Shares will as of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with Closing Time on the terms of Closing Date be listed on the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuanceCSE;
(xviii) as to the issuance accuracy of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained legal statements under the Canadian Securities Laws to permit such issuanceheadings “Eligibility For Investment” in the Prospectus;
(xix) that no other the documents will be required (including the Preliminary Prospectus, the Prospectus and any Supplementary Material) to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws delivered to purchasers in connection Québec comply with the first trade laws of the Special Warrants, Province of Québec relating to the Unit Shares, use of the Warrants, or the Warrant Shares, French language provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution French version of the Prospectus-Qualified Securities such document has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSEprovided; and
(xxivxx) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of ClosingUnderwriter. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the AgentUnderwriter, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Offered Shares or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent Underwriter shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation existence of, each of material Subsidiary, addressed to the Subsidiaries (which counsel, in turn may rely, only as Underwriter and legal counsel to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) Underwriter with respect to: (i) the incorporation, existence and good standing of such each Subsidiary; (ii) the authorized and issued and outstanding securities of such each Subsidiary and the holders of such outstanding securitiessecurities thereof held by the Company or a Subsidiary; (iii) the corporate power and capacity of such each Subsidiary to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable in all reasonable respects to the Agent Underwriter and its legal counsel;
(ec) if any Initial Shares or Additional Shares are sold to purchasers in the United States, the Underwriter will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States counsel to the Company, to the effect that no registration of the Initial Shares and Additional Shares offered and sold to purchasers in the United States will be required under the U.S. Securities Act, such opinion to be in form and substance, acceptable in all reasonable respects to the Underwriter and its legal counsel, it being understood that such counsel need not express its opinion with respect to any subsequent re-sale of such Initial Shares and Additional Shares;
(d) the Agent Underwriter shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the AgentUnderwriter, in form and content satisfactory to the AgentUnderwriter’s counsel, acting reasonably, with respect to:
(i) the Notice articles and notice of Articles and Articles articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to relevant to, among other things, the issuance, issue and sale and delivery of the Initial Special WarrantsOffered Shares, the issuance Broker Warrants and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities Broker Shares to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(fe) the Agent Underwriter shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant dated within one Business Day of the Closing Date, in respect of the Company and each Subsidiary;
(f) the Company shall cause its current auditors to deliver to the relevant governing legislation) Underwriter a “bring down” comfort letter, addressed to the Underwriter and the board of directors of the Company, dated within one
(1) the Closing Date, in form and substance satisfactory to the Underwriter, acting reasonably, bringing forward to a date not more than two Business Day Days prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of information contained in the Company and the Subsidiariescomfort letters referred to in Section 5(a)(iii) hereof;
(g) the Company shall deliver to the AgentUnderwriter, at each applicable Time of Closingthe Closing Time, certificates dated the Closing Date and or the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers Underwriter and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the AgentUnderwriter, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) the Final Receipt has been issued by the OSC for the Prospectus pursuant to the Passport System and, to the knowledge of such persons, no order, ruling or determination having the effect of ceasing the trading or suspending the sale of the Common Shares or other securities of the Company, or the Offered Shares to be issued and sold by the Company has been issued and no proceedings for such purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened;
(iv) since the respective dates as of which information is given in the Prospectus or any Supplementary Material (A) there has been no material change in the Company or its Subsidiaries, (B) there has been no material and adverse change (financial or otherwise) in the business, assets (including intangible assets), affairs, operations, prospects, liabilities (contingent or otherwise), capital, properties, condition (financial or otherwise) or results of operations or control of the Company and the Subsidiaries (taken as a whole), and (C) no transaction has been entered into by or affecting the Company or any Subsidiary which is material to the Company and the Subsidiaries (taken as a whole), other than as disclosed in the Prospectus or in any Supplementary Material;
(v) there has been no change in any material fact (which includes the disclosure of any previously undisclosed material fact) contained in the Prospectus which fact or change is, or may be, of such a nature as to render any statement in the Prospectus misleading or untrue in any material respect or which would result in a misrepresentation in the Prospectus or which would result in the Prospectus not complying with Applicable Securities Laws; and
(vi) such other matters as the Underwriter may reasonably request;
(h) the Underwriter shall have received copies of correspondence indicating that the Company has obtained all necessary approvals for the issuance of the Offered Shares to be listed on the CSE, subject only to the Standard Listing Conditions;
(i) the representations and warranties of the Company contained in this Agreement will be true at and as of the Closing Time on the Closing Date, and, if applicable, the Option Closing Date as if such representations and warranties were made at and as of such time and all agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by the Company at or prior to the Closing Time on the Closing Date or the Option Closing Date, as applicable, will have been performed, complied with or satisfied prior to that time;
(j) the absence of any misrepresentations in the Offering Documents or undisclosed material change or undisclosed material facts relating to the Company, any Subsidiary or the Offered Shares;
(k) the Company shall have received a Preliminary Receipt and a Final Receipt qualifying the Offered Shares for distribution in the Qualifying Jurisdictions, and neither the Preliminary Receipt nor the Final Receipt shall be invalid or have been revoked or rescinded by any Securities Commission;
(l) the Underwriter shall have received a certificate from Computershare Investor Services Inc. as to the number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date;
(m) the Underwriter will have received such other certificates, opinions, agreements or closing documents in form and substance reasonably satisfactory to the Underwriter as the Underwriter may reasonably request; and
(n) all directors and officers of the Company and their respective associates will have entered into an agreement with and an in form and substance satisfactory to the Underwriter at the Closing Time on the Closing Date pursuant to which they will agree not to, for a period commencing October 5, 2017 and ending on the date that is 120 days following the Closing Date, directly or indirectly offer, sell, contract to sell, lend, swap, or enter into any other agreement to transfer the economic consequences of, or otherwise dispose of or deal with, or publicly announce any intention to offer, sell, contract to sell, grant or sell any option to purchase, hypothecate, pledge, transfer, assign, purchase any option or contract to sell, lend, swap, or enter into any agreement to transfer the economic consequences of, or otherwise dispose of or deal with, whether through the facilities of a stock exchange, by p
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. The obligation obligations of the Agent Agents hereunder with respect to complete the Offering will be subject to the completion by the Agents of a due diligence review satisfactory to the Agents in their sole judgment and to the satisfaction (or waiver by the Agents in their sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at exercise its commercially reasonable efforts to have fulfilled on or prior to the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The Agent Agents will receive at the Time of Closing on the Closing Date, a legal opinion addressed to the PurchasersAgents and their counsel, the Agent ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated and its counsel dated delivered the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, and from local counsel (in respect of matters governed by laws of any the Qualifying Jurisdiction where the Company’s Canadian counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent Agents and its their 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 Agents’ counsel:
(i) the Company is incorporated a corporation duly created and validly existing under the laws British ColumbiaBCBCA, amalgamated or continued, as the case may be, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assets;
(ii) as to the authorized and issued capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issued;
(iv) the Additional Special Unit Shares and Warrants comprising the Underlying Units have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, created authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise or deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding outstanding, in the case of the Unit Shares, as fully paid securities and non-assessable Common Shares in the capital of the Company;
(viiv) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Common Shares in the capital of the Company;
(vi) the Compensation Warrants have been duly and validly created, authorized and issued;
(vii) the Compensation Warrant Shares underlying the Compensation Warrants have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Compensation Warrants in accordance with the terms of the Compensation Warrant Certificate, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(viii) if applicable, the form and terms of the definitive certificate representing the Subordinate Voting Common Shares and the certificate(s) certificate representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the BCBCA, the constating documents of the Company and the rules of the CSE and the Business Corporations Act (British Columbia)CSE;
(ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications;
(xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice of Articles and Articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenants
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation obligations of the Agent hereunder with respect to complete the Offering will be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole judgment and to the satisfaction (or waiver by the Agent in its sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at exercise its commercially reasonable efforts to have fulfilled on or prior to the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The Agent will receive at the Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel counsel, Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated and delivered the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any the Qualifying Jurisdiction where the Company’s Canadian counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent 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 Agent’s counsel:
(i) the Company is incorporated a corporation duly created and validly existing under the laws British ColumbiaBCBCA, amalgamated or continued, as the case may be, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assets;
(ii) as to the authorized and issued capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issued;
(iv) the Additional Special Unit Shares and Warrants comprising the Underlying Units have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, created authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise or deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding outstanding, in the case of the Unit Shares, as fully paid securities and non- assessable Common Shares in the capital of the Company;
(viiv) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Common Shares in the capital of the Company;
(vi) the Compensation Options have been duly and validly created, authorized and issued;
(vii) the Compensation Option Shares underlying the Compensation Options have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Compensation Options in accordance with the terms of the Compensation Option Certificate, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(viii) the Compensation Option Warrants underlying the Compensation Options have been duly and validly created, authorized, allotted and reserved for issuance;
(ix) the Common Shares underlying the Compensation Option Warrants have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Compensation Option Warrants in accordance with the terms thereof, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(x) the form and terms of the definitive certificate representing the Subordinate Voting Common Shares and the certificate(s) certificate representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the BCBCA, the constating documents of the Company and the rules of the CSE and the Business Corporations Act (British Columbia)CSE;
(ixxi) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and Warrants comprising the Warrants underlying Underlying Units issuable upon exercise or deemed exercise of the UnitsSpecial Warrants, and (viiiv) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications;
(xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice of Articles and Articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenants
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation obligations of the Agent hereunder with respect to complete the Offering will be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole judgment and to the satisfaction (or waiver by the Agent in its sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at the Time of Closing exercise its commercially reasonable efforts to have fulfilled on or prior to the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The the Agent will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel counsel, Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated and delivered on the Closing Date, Date from the Company’s Canadian 's counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent 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 Agent's counsel:
(i) the Company is a "reporting issuer", or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws British ColumbiaBCBCA, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assetsassets as described in the Prospectus;
(iiiii) as to the authorized and issued capital of the Company;
(iiiiv) 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 Special Shares have been duly and validly authorized and issued and are outstanding as fully paid and non-assessable shares in the capital of the Company;
(vi) the Over-Allotment Option has been duly and validly authorized and granted by the Company and the Additional Shares and Additional Warrants issuable upon the exercise of the Over-Allotment Option have been duly and validly 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 validly created, authorized and issued by the Company;
(vii) the Compensation Options have been duly and validly authorized and granted by the Company and the Compensation Shares, Compensation Warrants and Shares issuable upon the exercise of the Compensation Options and Compensation Warrants, respectively, have been duly and validly allotted and reserved for issuance by the Company and, upon the exercise of the Compensation Options, and Compensation Warrants, as the case may be, the Compensation Shares, Compensation Warrants and Shares will have been duly and validly created, authorized and issued by the Company, and the Compensation Shares and Shares 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;
(viii) the Warrants have been duly and validly created, authorized and issuedissued by the Company;
(ivix) the Additional Special Warrants Warrant Shares have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, and upon the exercise of the Warrants in accordance with the terms of their terms, the Warrant Indenture, including the payment of the aggregate exercise price, Shares will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the CompanyShares;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ixx) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and the Transaction Documents Warrant Indenture and to perform its obligations hereunder and thereunder; (ii) to create, offer, issue issue, sell and sell deliver the Initial Special WarrantsShares and the Initial Warrants comprising the Initial Units; (iii) to create, issue and grant the Purchaser’s Over- Allotment Option and offer, issue, sell and deliver the Additional Shares and Additional Warrants issuable upon exercise of the Over-Allotment Option; (iv) to createissue, offer, issue sell and sell deliver the Additional SecuritiesWarrant Shares upon the exercise of the Warrants; (v) to create, allot, reserve for issuance grant and issue the Units upon deemed exercise of the Initial Special Warrants Compensation Options; and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to createoffer, allotissue, reserve for issuance sell and issue deliver the Unit Compensation Shares and the Compensation Warrants underlying comprising the Compensation Units, and the Shares comprising the Compensation Warrants;
(viixi) all necessary corporate action has been taken by the Company to allotauthorize the execution and delivery of each of the Preliminary Prospectus, reserve for issuance the Prospectus and issue any Supplementary Material and the filing thereof with the Securities Commissions;
(xii) the Company has duly authorized, executed and delivered, this Agreement, the Warrant Indenture, and the certificate representing the Compensation Options, and authorized the performance of its obligations hereunder and thereunder, including the offering, creation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Shares and Additional Warrants issuable upon exercise of the Over-Allotment Option, and the Warrant Shares issuable upon exercise of the Additional Warrants;
(x) , the Company has duly executed creation and delivered grant of the Transaction Documents and authorized Compensation Options, the performance of its obligations thereunder, including the creation, issuanceissue, sale and delivery of the Initial Special Warrants, Compensation Shares and the creation, issuance Compensation Warrants comprising the Compensation Units and grant the Common Shares issuable upon exercise of the Purchaser’s OptionCompensation Warrants and the offering, the creation, issuanceissue, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon the exercise of the Warrants;
(xi) , and each of this Agreement and the Transaction Documents Warrant Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualificationsthe Qualification;
(xiixiii) each certificate representing the Compensation Options constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Qualification;
(xiv) the execution and delivery of the Transaction Documents this Agreement and the performance Warrant Indenture and the fulfillment of the terms hereof and thereof, including the offeroffering, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creationcreation (as applicable), issue, sale and delivery of the Initial Shares and the Initial Warrants comprising the Initial Units, the grant of the Over-Allotment Option, the offering, creation (as applicable) issue, sale and delivery of the Additional Securities Shares and Additional Warrants issuable upon exercise of the Purchaser’s Over-Allotment Option, the issue creation and grant of the Compensation Options, the issue, sale and delivery of the Unit Compensation Shares and the Compensation Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicableCompensation Units, and the issue offering and the issue, sale and delivery of the Warrant Shares upon the exercise of the Warrants, and the consummation of the other transactions contemplated by this Agreement and the Transaction DocumentsWarrant Indenture, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (ai) any of the terms, conditions or provisions of the Notice constating documents, articles or notice of Articles or Articles articles of the Company, (ii) of which such counsel is aware, any resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (biii) any the laws of the Province of British Columbia or and the federal laws of Canada applicable therein, or (civ) of which such counsel is aware, any judgement, order or decree of any Canadian federal, provincial or local government body, agency or court having jurisdiction over the terms, conditions or provisions of the Canopy AgreementCompany;
(xiiixv) the execution form and delivery terms of the Credit Agreement definitive certificate representing the Common Shares, the Warrants and the fulfillment Compensation Options have been approved by the directors of the terms thereofCompany and comply in all material respects with the BCBCA, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any the constating documents of the terms, conditions or provisions Company and the rules of the Canopy AgreementCSE;
(xivxvi) Odyssey AST Trust Company (Canada) is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Common Shares and AST Trust Company has been (Canada) is the duly appointed the special warrant agent in respect of the Special Warrants and as warrant registrar and transfer agent in respect of for the Warrants;
(xvixvii) all necessary documents have been filed, all requisite proceedings have been taken, all approvals, permits and consents of the appropriate regulatory authority in each Qualifying Jurisdiction have been obtained, and all necessary legal requirements have been fulfilled, in order to qualify the distribution of the Compensation Options and to qualify the distribution of the Initial Shares and the Initial Warrants comprising the Over-Allotment Option and the Additional Shares and the Additional Warrants issuable upon exercise of the Over-Allotment Option, in each of the Qualifying Jurisdictions through dealers who are registered under Applicable Securities Laws and who have complied with the relevant provisions of such Applicable Laws;
(xviii) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions Warrant Shares in accordance with and pursuant to the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, terms and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance conditions of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no authorization, approval, permit or approvals, permits, consents, orders or authorizations consent of the Securities Commissions is required to be obtained by the Company under the Canadian Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuanceissuance of the Warrant Shares;
(xviiixix) as to the issuance of the Compensation Shares and the Compensation Warrants comprising the Compensation Units being exempt from the prospectus requirements of Applicable Securities Laws and being freely tradeable;
(xx) the first trade in the Warrant Shares upon exercise of underlying the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian the Applicable Securities Laws, Laws in the Qualifying Jurisdictions and no prospectus or other documents are document is required to be filed, proceedings no proceeding is required to be taken and no approval, permit, consent or approvals, permits, consents, orders or authorizations authorization of regulatory authorities is required to be obtained by the Company under the Canadian Applicable Securities Laws of the Qualifying Jurisdictions to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained trade through registrants registered under Canadian Applicable Securities Laws in connection who have complied with such laws and the first trade terms and conditions of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Sharestheir registration, provided that four (4i) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if such trade is not a Qualification Prospectus Supplement qualifying the distribution "control distribution" as that term is defined in National Instrument 45-102 - Resale of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings planssuch trade, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxiiii) the Company is a “reporting issuer”, or its equivalent, in each issuer (as defined under Applicable Securities Laws) at the time of the Qualifying Jurisdictionssuch first trade, and (iii) such first trade is not listed as a transaction or series of transactions involving a purchase and sale or a repurchase and resale in default the course of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such or incidental to a listdistribution;
(xxiiixxi) subject only to the Standard Listing Conditions, the Unit Shares, the Compensation Shares, the Warrant Shares and the Warrant Shares Warrants, have been conditionally listed or approved for listing on the CSE;
(xxii) that the summary under the heading "Certain Canadian Federal Income Tax Considerations" in the Prospectus is a fair and adequate summary of the principal Canadian federal income tax considerations generally applicable to the acquisition, holding and disposition of the Shares, Warrants and Warrant Shares, subject to the qualifications, assumptions, limitations and understandings set out in such summary; and
(xxivxxiii) as to all other legal matters reasonably requested by counsel confirming that the statements under the heading "Eligibility for Investment" in the Prospectus, subject to the Agent prior to qualifications, assumptions and limitations set out under such heading, constitute a fair and adequate description of status of the applicable Time of ClosingShares, Warrants and Warrant Shares as "qualified investments" under the Income Tax Act (Canada) and its regulations. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the qualification for distribution s of securities contemplated by this Section Error! Reference source not found. the Offered Units or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s 's Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation existence of, each of the Subsidiaries (which counselSubsidiary, in turn may rely, only as addressed to matters of fact, on certificates of officers of such Subsidiaries, as appropriate the Agent and subject legal counsel to confirmation by the Agent) Agent with respect to: (i) the incorporation, existence and good standing of such Subsidiarythe Subsidiaries; (ii) the authorized and issued and outstanding securities of such Subsidiary the Subsidiaries and the holders of such outstanding securitiessecurities thereof held by the Company or a Subsidiary; (iii) the corporate power and capacity of such Subsidiary the Subsidiaries to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(ec) if any Initial Units or Additional Units are sold to purchasers in the United States, the Agent will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States counsel to the Company, to the effect that no registration of the Initial Units and Additional Units offered and sold to purchasers in the United States will be required under the U.S. Securities Act if made in accordance with this Agreement including the attached Schedule "A", such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel, it being understood that such counsel need not express its opinion with respect to any subsequent re-sale of such Initial Units and Additional Units;
(d) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date or the Option Closing Date, as applicable, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s 's counsel, acting reasonably, with respect to:
(i) the Notice articles and notice of Articles and Articles articles of the Company;
(ii) the resolutions of the Company’s 's board of directors with respect to relevant to, among other things, the issuance, issue and sale and delivery of the Initial Special Offered Units, the Shares, the Warrants, the issuance and grant of the Purchaser’s OptionWarrants Shares, the issuanceCompensation Options, sale and delivery of the Additional Securities Compensation Units, to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(fe) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) one Business Day prior to of the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each in respect of the Company and the Subsidiaries;
(f) the Company shall deliver "bring down" comfort letters, addressed to the Agent, dated the Closing Date, in form and substance satisfactory to the Agent, bringing forward to a date not more than two Business Days prior to the Closing Date, the information contained in the comfort letters referred to in Section 5(a)(iv) hereof;
(g) the Company shall deliver to the Agent, at each applicable Time of Closingthe Closing Time, certificates dated the Closing Date and or the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby;
(iii) the Final Receipt has been issued by the BCSC for the Prospectus pursuant to the Passport System and, to the knowledge of such perso
Appears in 1 contract
Conditions of Closing. The obligation obligations of the Agent hereunder with respect to complete the Offering will be subject to the completion by the Agent of a due diligence review satisfactory to the Agent in its sole judgment and to the satisfaction (or waiver by the Agent in its sole discretion) of the Purchasers following additional conditions, as applicable, which conditions the Company covenants to purchase (i) the Initial Special Warrants at exercise its commercially reasonable efforts to have fulfilled on or prior to the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s or any Option Closing Date, shall be subject to the followingas applicable:
(a) The Agent will receive at the Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent and its counsel counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated and delivered the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP, and from local counsel (in respect of matters governed by laws of any the Qualifying Jurisdiction where the Company’s Canadian counsel is not qualified to practice), in each case in form and substance satisfactory to the Agent 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 the Agent and its counsel:
(i) the Company is incorporated a corporation duly created and validly existing under the laws British ColumbiaBCBCA, amalgamated or continued, as the case may be, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assets;
(ii) as to the authorized and issued capital of the Company;
(iii) the Initial Special Warrants have been duly and validly created, authorized and issued;
(iv) the Additional Special Unit Shares and Warrants comprising the Underlying Units have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, created authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise or deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding outstanding, in the case of the Unit Shares, as fully paid securities and non-assessable Common Shares in the capital of the Company;
(viiv) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Common Shares in the capital of the Company;
(vi) the Compensation Warrants have been duly and validly created, authorized and issued;
(vii) the Compensation Warrant Shares underlying the Compensation Warrants have been duly and validly created, authorized, allotted and reserved for issuance and, upon the issue thereof upon the exercise of the Compensation Warrants in accordance with the terms of the Compensation Warrant Certificate, will be validly issued and outstanding as fully paid and non-assessable Common Shares in the capital of the Company;
(viii) if applicable, the form and terms of the definitive certificate representing the Subordinate Voting Common Shares and the certificate(s) certificate representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the BCBCA, the constating documents of the Company and the rules of the CSE and the Business Corporations Act (British Columbia)CSE;
(ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special Warrants or due exercise of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery of the Initial Special Warrants, the creation, issuance and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualifications;
(xii) the execution and delivery of the Transaction Documents and the performance of the terms thereof, the offer, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any laws of the Province of British Columbia or federal laws of Canada applicable therein, or (c) any of the terms, conditions or provisions of the Canopy Agreement;
(xiii) the execution and delivery of the Credit Agreement and the fulfillment of the terms thereof, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreement;
(xiv) Odyssey Trust Company is the duly appointed registrar and transfer agent for the Subordinate Voting Shares;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvi) the issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in connection with the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) the incorporation, existence and good standing of such Subsidiary; (ii) the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect to:
(i) the Notice of Articles and Articles of the Company;
(ii) the resolutions of the Company’s board of directors with respect to the issuance, sale and delivery of the Initial Special Warrants, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; and
(iii) the incumbency and signatures of signing officers of the Company;
(f) the Agent shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each of the Company and the Subsidiaries;
(g) the Company shall deliver to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenants
Appears in 1 contract
Sources: Agency Agreement
Conditions of Closing. The obligation obligations of the Agent Underwriters hereunder with respect to complete the Offering and of the Purchasers to purchase (i) the Initial Special Warrants at the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s Option Closing Date, shall will be subject to the followingcompletion 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 following additional conditions, as applicable, which conditions the Company covenants to exercise its commercially reasonable efforts to have fulfilled on or prior to the Closing Time:
(a) The Agent the Underwriters will receive at the Closing Time of Closing on the Closing Date, a legal opinion addressed to the Purchasers, the Agent Underwriters and its counsel dated and delivered on the Closing Date, Date from the Company’s Canadian counsel, DLA Piper (Canada) ▇▇▇▇▇▇▇▇ LLP, and from local counsel (in respect of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case 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 Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions and it is not listed as in default of Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(ii) the Company is a corporation duly incorporated and validly existing under the laws British ColumbiaCBCA, and has all requisite corporate power power, capacity and capacity authority to carry on its business as now conducted and to own, lease and operate its property and assets;
(iiiii) as to the authorized and issued capital of the Company;
(iiiiv) the Initial Special Warrants Offered Debentures have been duly and validly created, authorized and issued;
(iv) issued by the Additional Special Warrants have been duly and validly created, authorized and reserved for issuance, and upon the exercise of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly and validly issuedCompany;
(v) the Unit Debenture Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, allotted and reserved for issuance and, and upon the deemed exercise conversion of the Special Warrants Offered Debentures in accordance with the terms of the Special Warrant Trust Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, Debenture Shares will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the CompanyClass A Shares;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply in all material respects with the rules of the CSE and the Business Corporations Act (British Columbia);
(ixvi) the Company has all necessary corporate power and capacity: (i) to execute and deliver this Agreement and the Transaction Documents Trust Indenture, and to perform its obligations hereunder and thereunder; (ii) to create, offer, issue issue, sell and sell deliver the Initial Special WarrantsOffered Debentures; and (iii) to createissue, issue sell and grant deliver the Purchaser’s Option; (iv) to create, offer, issue and sell Debenture Shares upon the Additional Securities; (v) to create, allot, reserve for issuance and issue the Units upon deemed exercise conversion of the Initial Special Warrants and any Additional Special Warrants or due exercise Offered Debentures in accordance with the terms of the Purchaser’s Option after the Qualification Date, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the WarrantsTrust Indenture;
(xvii) the Company has duly authorized, executed and delivered delivered, this Agreement and the Transaction Documents Trust Indenture, and authorized the performance of its obligations hereunder and thereunder, including the offering, creation, issuanceissue, sale and delivery of the Initial Special Warrants, Offered Debentures and the creation, issuance and grant issue of the Purchaser’s Option, the creation, issuance, sale and delivery Debenture Shares upon conversion of the Additional Securities to be issued and sold by Offered Debentures in accordance with the Company upon exercise terms of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicableTrust Indenture, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of this Agreement and the Transaction Documents Trust Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to usual and customary qualificationsthe Qualification;
(xiiviii) the execution and delivery of the Transaction Documents this Agreement and the performance Trust Indenture, and the fulfillment of the terms hereof and thereof, including the offeroffering, issue and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creationcreation (as applicable), issue, sale and delivery of the Additional Securities upon exercise of Offered Debentures and the Purchaser’s Optionoffering and the issue, the issue sale and delivery of the Unit Debenture Shares and Warrants comprising the Units upon the deemed exercise conversion of the Initial Special Warrants and any Additional Special Warrants or Offered Debentures in accordance with the exercise terms of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the WarrantsTrust Indenture, and the consummation of the other transactions contemplated by this Agreement and the Transaction Documents, Trust Indenture do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under (ai) any of the terms, conditions or provisions of the Notice constating documents, articles of Articles incorporation or Articles amalgamation, as applicable, of the Company, (ii) of which counsel is aware, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, or (biii) any the laws of the Province of British Columbia or Québec and the federal laws of Canada applicable therein, or (civ) of which such counsel is aware, any judgement, order or decree of any Canadian federal, provincial or local government body, agency or court having jurisdiction over the terms, conditions or provisions of the Canopy AgreementCompany;
(xiiiix) the execution form and delivery terms of the Credit Agreement definitive certificate representing the Class A Shares and the fulfillment Offered Debentures have been approved by the directors of the terms thereofCompany and comply in all material respects with the CBCA, do not conflict with or result in a breach of (whether after notice or lapse of time or both) or constitute a default under any the constating documents of the terms, conditions or provisions Company and the rules of the Canopy AgreementCSE;
(xivx) Odyssey Trust Company Computershare Investor Services Inc. is the duly appointed registrar and transfer agent for the Subordinate Voting SharesClass A Shares and Computershare Trust Company of Canada is the duly appointed trust agent and registrar and transfer agent for the Offered Debentures;
(xv) Odyssey Trust Company has been appointed the special warrant agent in respect of the Special Warrants and as warrant agent in respect of the Warrants;
(xvixi) the offering, issuance and sale by the Company of the Initial Special Warrants, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, Offered Debentures is exempt from the prospectus requirements of Canadian Applicable Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian the Applicable Securities Laws to permit such offering, issuance and sale; it being noted, however, that the Company is required to file or cause to be filed with the applicable Securities Commissions, reports on Form 45-106F1, prepared and executed pursuant to NI 45-106, together with the prescribed filing fee, within 10 days following the Closing Date;
(xii) the issuance by the Company of the Debenture Shares in accordance with and pursuant to the terms and conditions of the Trust Indenture is exempt from the prospectus requirements of the Applicable Securities Laws in connection with the Qualifying Jurisdictions and no prospectus or other document is required to be filed, no proceeding is required to be taken and no authorization, approval, permit or consent of the Securities Commissions is required to be obtained by the Company under the Applicable Securities Laws in the Qualifying Jurisdictions to permit such issuance of the Debenture Shares;
(xiii) the first trade of the Special Warrants, the Unit Shares, the Warrants, or the Warrant Shares, provided that four (4) months have elapsed since the Closing Date, Debenture Shares will be a distribution subject to the usual qualifications;
(xx) if a Qualification Prospectus Supplement qualifying prospectus requirements under the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Applicable Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, unless otherwise exempt from such prospectus requirement or unless at the time of such trade:
A. the Company is and has been a reporting issuer in a jurisdiction of Canada for the four months immediately preceding the trade;
B. at the time of such trade, at least four months have elapsed from the “distribution date” (as defined under NI 45-102) of the Debenture Shares;
C. the certificates representing the Debenture Shares carry the legend stating: “UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER DECEMBER 9, 2021”;
D. such trade is not listed a “control distribution” (as defined in NI 45-102);
E. no unusual effort is made to prepare the market or to create a demand for the securities that are the subject of such trade;
F. no extraordinary commission or consideration is paid to a person or company in respect of such trade; and
G. if the selling securityholder is an insider or officer of the Company, the selling securityholder has no reasonable grounds to believe that the Company is in default of any requirement “securities legislation” (as defined in National Instrument 14-101 – Definitions); and
H. such trade is not a transaction or series of transactions involving further purchases and sales in the Canadian course of or incidental to a “distribution” (as such term is defined in Applicable Securities Laws in any of the Qualifying Jurisdictions which maintain such a listLaws);
(xxiiixiv) subject only the Company shall have accepted the duly and fully completed Subscription Agreements with the Subscribers and, unless the Company reasonably believes it would be unlawful or contrary to Applicable Securities Laws to do so, have accepted each duly executed Subscription Agreement accompanied by the required subscription funds submitted to the Standard Listing Conditions, Company as contemplated by the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSEOffering; and
(xxivxv) as all necessary documents have been filed by the Company to all other legal matters reasonably requested by counsel to effect the Agent prior to listing of the applicable Time Debenture Shares on the CSE upon the conversion of Closingthe Offered Debentures in accordance with the terms of the Trust Indenture. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the AgentUnderwriters, acting reasonably, as to the distribution s qualification for sale of securities contemplated by this Section Error! Reference source not found. the Offered Debentures or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and but only as to matters of fact, on certificates of officers of the Company and others;
(b) the Agent Underwriters shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel to, and duly qualified to practice law in the jurisdiction of incorporation existence of, each of the Subsidiaries (which counselSubsidiary, in turn may rely, only as addressed to matters of fact, on certificates of officers of such Subsidiaries, as appropriate the Underwriters and subject legal counsel to confirmation by the Agent) Underwriters with respect to: (i) the incorporation, existence and good standing of such Subsidiarythe Subsidiaries; (ii) the authorized and issued and outstanding securities of such Subsidiary the Subsidiaries and the holders of such outstanding securitiessecurities thereof held by the Company or a Subsidiary; (iii) the corporate power and capacity of such Subsidiary the Subsidiaries to carry on its business and activities and to own and lease its property and assets; each such opinion to be in form and substance, acceptable in all reasonable respects to the Agent Underwriters and its legal counsel;
(ec) if any Offered Debentures are sold to purchasers in the United States, the Underwriters will receive, at the Closing Time, a favourable legal opinion dated the Closing Date from United States counsel to the Company, to the effect that no registration of the Offered Debentures offered and sold to purchasers in the United States will be required under the U.S. Securities Act if made in accordance with this Agreement, such opinion to be in form and substance, acceptable in all reasonable respects to the Underwriters and its legal counsel, it being understood that such counsel need not express its opinion with respect to any subsequent re-sale of such Offered Debentures;
(d) the Agent Underwriters shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date Date, signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the AgentUnderwriters, in form and content satisfactory to the Agent’s Underwriters’ counsel, acting reasonably, with respect to:
(i) the Notice of Articles articles and Articles by-laws of the Company;
(ii) the resolutions of the Company’s board of directors with respect to relevant to, among other things, the issuance, issue and sale and delivery of the Initial Special WarrantsOffered Debentures and the Debenture Shares, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documentsagreements and transactions contemplated herein; and
(iii) the incumbency and signatures of signing officers of the Company;
(fe) the Agent Underwriters shall have received at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) one Business Day prior to of the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each in respect of the Company and the Subsidiaries;
(gf) the Company shall deliver to the AgentUnderwriters, at each applicable Time of Closingthe Closing Time, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers Underwriters and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the AgentUnderwriters, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantscovenants and satisfied all the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(ii) the representations and warranties of the Company contained herein are true and correct as at the Closing Time with the same force and effect as if made on and as at the Closing Time after giving effect to the transactions contemplated hereby; and
(iii) such other matters as the Underwriters may reasonably request;
(g) the Underwriters shall have received copies of correspondence with the CSE, if any, relating to the listing of the Debenture Shares to be listed on the CSE upon the conversion of the Offered Debentures in accordance with the terms of the Trust Indenture;
(h) the representations and warranties of the Company contained in this Agreement will be true at and as of the Closing Time on the Closing Date and all agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by the Company at or prior to the Closing Time on the Closing Date will have been performed, complied with or satisfied prior to that time;
(i) the absence of any undisclosed material change or undisclosed material facts relating to the Company, any Subsidiary or the Offered Debentures;
(j) the Underwriters shall have received a certificate from Computershare Investor Services Inc. as to the number of Class A Shares issued and outstanding as at the date immediately prior to the Closing Date;
(k) the Underwriters will have received such other certificates, opinions, agreements or closing documents in form and substance reasonably satisfactory to the Underwriters as the Underwriters may reasonably request;
(l) Concurrently with the Offering, the Company will issue, on a private placement basis, $10,000,000 aggregate principal amount of 12.00% convertible unsecured subordinated debentures maturing December 31, 2024 of the Company to Investissement Québec (the “Concurrent Offering”). All conditions to such concurrent financing shall have been fulfilled and all documents shall have been tabled in escrow to be released upon confirmation that the Offering contemplated by this Agreement is being completed, the whole as confirmed by a certificate of the President of the Company to be provided to the Underwriters at the time of Closing; and
(m) each of the directors and officers of the Company, and principal shareholders holding more than 10% of the issued and outstanding common shares of the Company shall agree, in a lock-up agreement to be executed concurrently with the closing of the Offering, that for a period of 120 days from the Closing Date each will not, except with the prior consent of the Lead Underwriter, such consent not to be unreasonably withheld, directly or indirectly, offer, sell, contract to sell, grant any option to purchase, make any short sale, or otherwise dispose of, or transfer, or announce any intention to do so, any Class A Shares of the Company, whether now owned directly or indirectly, or under their control or direction, or with respect to which each has beneficial ownership, or enter into any transaction or arrangement that has the effect of transferring, in whole or in part, any of the economic consequences of ownership of Class A Shares of the Company, whether such transaction is settled by the delivery of Class A Shares of the Company, other securities, cash or otherwise other than pursuant to a take-over bid or any other similar transaction made generally to all of the shareholders of the Company.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions of Closing. 14.1 The obligation of the Agent to complete the Offering and of the Purchasers to purchase (i) the Initial Special Warrants at the Time of Closing on the Closing Date and, (ii) if applicable, the Additional Securities at the Time of Closing on the Purchaser’s Option Closing Date, Agents’ obligations under this Agreement shall be subject to the followingfollowing conditions being fulfilled on or prior to the Closing Date:
(a) The Agent will receive at the Time of Closing on the Closing Date, Agents shall have received a legal opinion dated as of the Closing Date addressed to the Purchasers, the Agent and its counsel dated the Closing Date, Agents from the Company’s Canadian counsel, DLA Piper (Canada) LLP, and from local Corporation's counsel (in respect who may rely upon the opinions of matters governed by laws of any Qualifying Jurisdiction where the Company’s counsel is not qualified to practice), in each case local counsel) in form and substance satisfactory content to the Agent satisfaction of the Agents’ counsel with respect to all such matters as the Agents may reasonably request, including, without limitation, the following:
(i) each of the Corporation and the Material Subsidiaries has been duly created, incorporated, amalgamated or continued, as the case may be, and is existing and has all requisite power and authority to carry on its counselrespective business as now conducted by it and to own or lease its properties and assets as now conducted, acting reasonablyand to execute, deliver and, with respect to the following matters:
(i) the Company is incorporated and validly existing Corporation, to perform its obligations under the laws British Columbia, and has all requisite corporate power and capacity to carry on its business as now conducted and to own, lease and operate its property and assetsthis Agreement;
(ii) as all necessary actions have been taken by the Corporation to validly create, issue, sell and deliver the Units, the Common Shares and the Warrants to the authorized Purchasers and issued capital of the CompanyCompensation Warrants to the Agents;
(iii) the Initial Special Warrants have been Corporation has duly reserved and validly createdallotted for issuance the Common Shares, authorized the Warrants, the Compensation Warrants, and issuedthe Underlying Shares issuable by it;
(iv) the Additional Special Warrants have been duly and validly created, authorized and reserved for issuance, and upon the exercise attributes of the Purchaser’s Option in accordance with its terms, including the payment of the Issue Price per Additional Special Warrant, will be duly Units and validly issued;
(v) the Unit Shares comprised in the Units (including for certainty, any Additional Units) have been duly and validly created, authorized, and reserved for issuance and, upon the deemed exercise of the Special Agents’ Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued;
(vi) the Warrants comprised in the Units (including for certainty, any Additional Units) have been authorized and reserved for issuance and, upon the deemed exercise of the Special Warrants in accordance with the terms of the Special Warrant Indenture, or the exercise of the Purchaser’s Option after the Qualification Date including payment of the aggregate issue price per Additional Unit, as applicable, will be duly and validly issued and outstanding as fully paid securities of the Company;
(vii) the Warrant Shares underlying the Warrants (including for certainty, any Warrants comprised in Additional Units) have been authorized, allotted and reserved for issuance and, upon the exercise of the Warrants in accordance with the terms of the Warrant Indenture, including the payment of the aggregate exercise price, will be duly and validly issued and outstanding as fully paid and non-assessable Subordinate Voting Shares of the Company;
(viii) the form and terms of the definitive certificate representing the Subordinate Voting Shares and the certificate(s) representing the Special Warrants and Warrants (if any) have been approved by the directors of the Company and comply are consistent in all material respects with the rules description thereof contained under the heading “Description of Securities Distributed” in the CSE and the Business Corporations Act (British Columbia)Final Prospectus;
(ix) the Company has all necessary corporate power and capacity: (i) to execute and deliver the Transaction Documents and perform its obligations thereunder; (ii) to create, offer, issue and sell the Initial Special Warrants; (iii) to create, issue and grant the Purchaser’s Option; (iv) to create, offer, issue and sell the Additional Securities; (v) to createeach of this Agreement, allot, reserve for issuance and issue the Units upon deemed exercise of the Initial Special Warrants and any Additional Special the Compensation Warrants or due exercise of the Purchaser’s Option after the Qualification Datehas been duly authorized, as applicable; (vi) to create, allot, reserve for issuance and issue the Unit Shares and the Warrants underlying the Units, and (vii) to allot, reserve for issuance and issue the Warrant Shares issuable upon exercise of the Warrants;
(x) the Company has duly executed and delivered the Transaction Documents and authorized the performance of its obligations thereunder, including the creation, issuance, sale and delivery on behalf of the Initial Special Warrants, the creation, issuance Corporation and grant of the Purchaser’s Option, the creation, issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the creation, issuance and delivery of the Unit Shares and Warrants to be issued on deemed exercise of the Special Warrants or the due exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issuance of the Warrant Shares upon exercise of the Warrants;
(xi) each of the Transaction Documents constitutes is a legal, valid and binding obligation of the Company Corporation enforceable against the Company Corporation in accordance with its terms, subject to usual and customary qualifications;
(xiivi) the execution offering, issue and sale by the Corporation of the Units in accordance with the terms of this Agreement and the issuance and delivery of the Transaction Documents Underlying Shares issuable upon exercise of the Warrants and the Compensation Warrants, as the case may be, and the performance of and compliance by the Corporation with the terms thereof, the offer, issue of this Agreement does not and sale of the Initial Special Warrants, the creation, issue and grant of the Purchaser’s Option, the creation, issue, sale and delivery of the Additional Securities upon exercise of the Purchaser’s Option, the issue and delivery of the Unit Shares and Warrants comprising the Units upon the deemed exercise of the Initial Special Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, and the issue of the Warrant Shares upon exercise of the Warrants, and the consummation of the other transactions contemplated by the Transaction Documents, do will not conflict with or result in a breach of (whether after notice or lapse of time or both) of, or constitute a default under (a) any of the terms, conditions or provisions of the Notice of Articles or Articles of the Company, resolutions of the shareholders or the board of directors (or any committee thereof) of the Company, (b) any applicable laws of the Province of in British Columbia or federal any laws of Canada applicable thereintherein or any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Corporation, or any judgement, decree, order, statute, rule or regulation applicable to the Corporation or the Material Subsidiaries which default or breach could have a Material Adverse Effect on the Corporation;
(cvii) any the authorized capital of the Corporation only consists of an unlimited number of Common Shares;
(viii) the Corporation is the owner of all of the issued and outstanding securities of the Material Subsidiaries;
(ix) the Common Shares, the Warrants and the Compensation Warrants have been validly created and issued by the Corporation and, upon the Corporation receiving payment of the purchase price for the Units, the Common Shares, the Warrants and the Compensation Warrants, as the case may be, will be validly issued and outstanding as fully paid and non- assessable securities of the Corporation;
(x) the Underlying Shares have been validly created by the Corporation and, upon the exercise of the Warrants and the Compensation Warrants, as applicable, in accordance with their terms, conditions or provisions the Underlying Shares so issuable will be validly issued and outstanding as fully paid and non- assessable Common Shares of the Canopy AgreementCorporation;
(xi) the issuance of the Units, and the Common Shares and the Warrants issuable upon the exercise of the Units, and the Compensation Warrants and the Underlying Shares issuable upon the exercise of the Warrants and the Compensation Warrants have been accepted by the TSXV and the Common Shares and the Underlying Shares have been accepted for listing on the TSXV (subject to the Standard Listing Conditions);
(xii) the Units, consisting of the Common Shares and the Warrants, and the Underlying Shares on the date of issue, will be qualified investments under the Income Tax Act (Canada) (the "Tax Act") and the Income Tax Regulations for trusts governed by a registered retirement savings plan, registered retirement income fund, deferred profit sharing plan and registered education savings plan and will not be a prohibited investment for a registered pension plan under the Tax Act and the Income Tax Regulations. The Units, consisting of the Common Shares and the Warrants, and the Underlying Shares will not, on the date of issue, constitute "foreign property" for the purposes of Part XI of the Tax Act;
(xiii) the execution Corporation is a "reporting issuer" under Securities Act (British Columbia) and delivery is not included in a list of defaulting reporting issuers maintained by the British Columbia Securities Commission. The Corporation is also a "reporting issuer" or the equivalent under the Securities Laws of each of the Credit Agreement provinces of British Columbia, Alberta and the fulfillment on Closing, in Ontario and is not included on a list of the terms thereof, do not conflict with defaulting reporting issuers (or result in a breach of (whether after notice or lapse of time or bothequivalent) or constitute a default under any of the terms, conditions or provisions of the Canopy Agreementmaintained pursuant to such legislation;
(xiv) Odyssey Trust Company is the Transfer Agents, at its principal office in Vancouver, has been duly appointed registrar and as the transfer agent and registrar for the Subordinate Voting Common Shares;
(xv) Odyssey Trust Company has been appointed that no prospectus, offering memorandum or other document is required under the special warrant agent in respect securities laws of the Special Warrants Qualifying Jurisdictions, and except as warrant agent have been obtained or completed, no proceeding is required to be taken and no approval, consent or authorization of or filing with the TSXV or any securities regulatory authority in respect the Qualifying Jurisdictions is required in order to permit the issuance of the Underlying Shares upon the exercise of the Warrants or the Compensation Warrants;, as the case may be; and
(xvi) the issuance and sale by the Company of the Initial Special Warrantsthat no prospectus, the Purchaser’s Option and any Additional Securities to the Purchasers in the Qualifying Jurisdictions in accordance with the Subscription Agreements is exempt from the prospectus requirement of Canadian Securities Laws, and no prospectus offering memorandum or other documents are required to be filed (other than specified forms accompanied by requisite filing fees), no proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance and sale;
(xvii) the issuance of the Unit Shares and Warrants to holders of Initial Special Warrants and any Additional Special Warrants pursuant to and in accordance with the terms of the Special Warrant Indenture or the exercise of the Purchaser’s Option after the Qualification Date, as applicable, document is exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings no proceeding required to be taken and no approval, permit, consent or approvals, permits, consents, orders or authorizations authorization is required to be obtained under the Canadian Securities Laws to permit such issuance;
(xviii) the issuance securities laws of the Warrant Shares upon exercise of the Warrants pursuant to and in accordance with the terms of the Warrant Indenture, including payment of the aggregate exercise price, is exempt from the prospectus requirements of Canadian Securities Laws, and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Canadian Securities Laws to permit such issuance;
(xix) that no other documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws Qualifying Jurisdictions in connection with the first trade of the Special Warrants, Underlying Shares in the Unit Shares, the Warrants, Qualifying Jurisdictions through brokers or the Warrant Sharesdealers properly registered under such securities laws, provided that four (4) months have elapsed since the Closing Date, subject to the usual qualifications;that:
(xx) if A. a Qualification Prospectus Supplement receipt was obtained for a prospectus qualifying the distribution of the Prospectus-Qualified Securities has been filed with the Securities Commissions prior to their issuance: (A) the Unit Shares, the Warrants, and the Warrant Shares will not be subject to any statutory hold period or restricted period under Canadian Securities Laws, and (B) no documents will be required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws in order to permit the first trade of such securities in the Qualifying Jurisdictions;
(xxi) based on the provisions of the Tax Act in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, the Special Warrants, the Unit Shares, the Warrants and the Warrant Shares will be qualified investments for Compensation Warrants;
B. the purposes of trade is not a “control distribution” as defined in NI 45-102; and
C. the Tax Act Corporation is a reporting issuer at the time of their acquisition for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act (each, a “Plan”), provided that at that time, in the case of (a) the Special Warrants and the Warrants, neither the Company nor any person with whom the Company does not deal at arm’s length is an annuitant, a beneficiary, an employer or a subscriber under, or a holder of, the Plan, and the Company is a public corporation for purposes of the Tax Act; and (b) the Unit Shares and the Warrant Shares, the Company is a public corporation for purposes of the Tax Act;
(xxii) the Company is a “reporting issuer”, or its equivalent, in each of the Qualifying Jurisdictions, and is not listed as in default of any requirement of the Canadian Securities Laws in any of the Qualifying Jurisdictions which maintain such a list;
(xxiii) subject only to the Standard Listing Conditions, the Unit Shares and the Warrant Shares have been listed or approved for listing on the CSE; and
(xxiv) as to all other legal matters reasonably requested by counsel to the Agent prior to the applicable Time of Closing. In connection with such opinion, counsel to the Company may rely on the opinions of local counsel in the Qualifying Jurisdictions acceptable to counsel to the Agent, acting reasonably, as to the distribution s of securities contemplated by this Section Error! Reference source not found. or opinions may be given directly by local counsel of the Company with respect to those items and as to other matters governed by the laws of jurisdictions other than the province or provinces in which the Company’s Canadian counsel are qualified to practice and may rely, to the extent appropriate in the circumstances and only as to matters of fact, on certificates of officers of the Company and others;trade.
(b) the Agent shall Agents will have received certificates dated as at the Time Closing Date signed by those senior officers of Closing on the Closing Date, a favourable legal opinion addressed Corporation as may be acceptable to the Agent and the PurchasersAgents, acting reasonably, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from the U.S. counsel to the Company, to the effect that the offer and sale of the Special Warrants does not require registration under the U.S. Securities Act; provided that such offers and sales are made in compliance with this Agreement and provided further that it is understood that no opinion is expressed to any subsequent resale of any Special Warrants;
(c) the Agent shall have received at the Time of Closing on the Closing Date, a favourable legal opinion addressed to the Agent and the Purchasers, in form and substance satisfactory to the Agent, acting reasonably, dated as of the Closing Date, from United States regulatory counsel to the Company, to the effect that: (i) the Company or one of its Subsidiaries has the applicable cannabis licenses it is required to have from each such state in order for the Company or such Subsidiary to transact its cannabis business in such state; and (ii) each holder of such licenses has the licenses it is required to have from each such governmental authority in order for such holder to engage in its activities involving those aspects of the sale and processing of cannabis in which it is involved;
(d) the Agent shall have received at the Time of Closing on the Closing Date, favourable legal opinions addressed to the Agent and the Purchasers, in form and substance content satisfactory to the Agents, acting reasonably, dated as of the Closing Date, from legal counsel duly qualified to practice law in the jurisdiction of incorporation of, each of the Subsidiaries (which counsel, in turn may rely, only as to matters of fact, on certificates of officers of such Subsidiaries, as appropriate and subject to confirmation by the Agent) with respect to: (i) to all such matters as the incorporationAgents may reasonably request, existence and good standing of such Subsidiary; (ii) including the authorized and issued and outstanding securities of such Subsidiary and the holders of such outstanding securities; (iii) the power and capacity of such Subsidiary to carry on its business and activities and to own and lease its property and assets; such opinion to be in form and substance, acceptable in all reasonable respects to the Agent and its legal counsel;
(e) the Agent shall have received at the Time of Closing on the Closing Date, a certificate dated the Closing Date signed by the Chief Executive Officer and Chief Financial Officer of the Company or any other senior officer(s) of the Company as may be acceptable to the Agent, in form and content satisfactory to the Agent’s counsel, acting reasonably, with respect tofollowing:
(i) the Notice of Articles and Articles constating documents of the CompanyCorporation;
(ii) the resolutions of the Company’s board directors of directors with respect the Corporation relevant to the issuanceallotment, issue and sale and delivery of the Initial Special WarrantsUnits, the issuance and grant of the Purchaser’s Option, the issuance, sale and delivery of the Additional Securities to be issued and sold by the Company upon exercise of the Purchaser’s Option, the issuance and delivery of the Units upon the deemed exercise of the Initial Special Compensation Warrants and any Additional Special Warrants or the exercise of the Purchaser’s Option after the Qualification DateUnderlying Shares, as applicable, the issuance and delivery of the Unit Shares and Warrants comprising the Units (including for certainty any Additional Units), and the issuance of the Warrant Shares upon exercise of the Warrants, and the authorization of this Agreement and the other Transaction Documents; andagreements and transactions contemplated by this Agreement;
(iii) the incumbency and signatures of signing officers of the CompanyCorporation; and
(iv) without bringing forward any date expressly referenced in a specific representation, the representations and warranties of the Corporation contained in this Agreement are true and correct as of the Closing Date with the same force and effect as if made at and as of the Closing Date;
(c) all actions required to be taken by or on behalf of the Corporation and all requisite filings with governmental authorities, Securities Commissions or courts will have occurred at or prior to the Closing Time so as to validly create and issue the Units and the Compensation Warrants;
(d) the issuance of the Units and Compensation Warrants will have been accepted by the TSXV and the Common Shares and the Underlying Shares will have been approved for listing and posting for trading on the TSXV (subject only to Standard Listing Conditions);
(e) the Agents will have received such other certificates (including bringdown certificates), opinions, agreements, materials or documents, in form and substance satisfactory to the Agents, as the Agents may reasonably request;
(f) the Agent shall have received Corporation having complied with all covenants contained herein and satisfied all terms and conditions contained herein to be complied with and satisfied by it at each applicable Time of Closing, a certificate of status (or the equivalent thereof pursuant to the relevant governing legislation) dated within one
(1) Business Day prior to the Closing Date and the Purchaser’s Option Closing Date, as applicable, from each completion of the Company and the Subsidiaries;Offering; and
(g) the Company diligence conducted by the Agents shall deliver not have revealed any adverse material change or material fact in respect of the Corporation or the Material Subsidiaries not generally known to the Agent, at each applicable Time of Closing, certificates dated the Closing Date and the Purchaser’s Option Closing Date, as applicable, addressed to the Agent and the Purchasers and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company, or such other senior officer(s) of the Company as may be acceptable to the Agent, certifying for and on behalf of the Company and without personal liability, after having made due enquiries, to the effect that:
(i) the Company has complied in all respects with all the covenantspublic which should have been previously disclosed.
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