Offering Terms. 2.1 The Units will be offered for sale by the Agent to Purchasers resident in the Qualifying Jurisdictions on a private placement basis and only at the Issue Price as contemplated herein. 2.2 The Agent will comply with applicable laws, regulations and Exchange rules in connection with the offer to sell, or distribution of, the Units. The Agent will not, directly or indirectly, solicit offers to purchase or sell the Units so as to require the filing of a prospectus, offering memorandum or similar disclosure document with respect to the Units, the Common Shares, the Warrants, the Warrant Shares, the Agent's Compensation Options or the Agent's Compensation Shares under the laws of any of the Qualifying Jurisdictions. The Agent will use its best efforts to cause similar undertakings to be contained in any agreement among any members of the banking, selling or other group formed for the distribution of the Units, the Common Shares and the Warrants, and will require any member of the banking, selling or other group formed for the distribution of the Units to comply with applicable laws, including securities laws and regulations of any Qualifying Jurisdiction and Exchange rules. 2.3 The sale of the Units to Purchasers is to be effected by the Agent in a manner exempt from any prospectus, registration statement, offering memorandum or similar disclosure document filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities. The Agent will notify the Corporation with respect to the identity, location and residence of each Purchaser in a Qualifying Jurisdiction as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure compliance with all Applicable Securities Laws in connection with the sale of the Units to the Purchasers. The Corporation will have the final decision on the prospective Purchaser list. 2.4 The Agent will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and a properly completed and duly executed Selling Securityholder Notice and Questionnaire and Accredited Investor Certificate, Minimum Amount Investment Certificate, or Foreign Purchaser Certificate, together with any additional documentation as may be requested by the Exchange. 2.5 If in the opinion of the Agent it is necessary, the Agent will form, manage and participate in a group of sub agents to offer and sell the Units, the Common Shares and the Warrants as provided for hereunder. Each sub agent shall be appropriately registered under the Applicable Securities Laws in their respective jurisdictions so as to permit it to lawfully offer and sell the Units, the Common Shares and the Warrants in such jurisdictions in which it offers and sells the Units, the Common Shares and the Warrants. In the event that a selling group is formed, the Agent will: (a) manage the selling group as and to the extent customary in the securities industry in Canada; and (b) require each member of the selling group to offer and sell the Units, the Common Shares and the Warrants on the terms set forth in this Agreement. 2.6 The Corporation covenants to use its reasonable best efforts to satisfy as expeditiously as possible, each of the conditions of the Exchange, if any, required to be satisfied prior to the Exchange's admission of the Common Shares for trading. 2.7 Neither the Corporation nor the Agent shall: (i) provide to prospective Purchasers any document or other material that would constitute an offering memorandum or future oriented financial information within the meaning of the Applicable Securities Laws of Canada or the United States or any state or territory thereof; or (ii) engage in any form of general solicitation or general advertising in connection with the offer and sale of the Units, including causing the sale of the Units to be advertised in any newspaper, magazine, printed public media, printed media or similar medium of general and regular paid circulation, broadcast over radio, television, interne or telecommunications, including electronic display, or conduct any seminar or meeting relating to the offer and sale of the Units whose attendees have been invited by general solicitation or advertising. 2.8 No selling or promotional expenses will be paid for or incurred in connection with the Offering, except for professional services or for services performed by a registered dealer, as provided for herein. 2.9 The Corporation shall refuse to register any transfer of any Securities or Agent's Compensation Options (including the underlying securities) made prior to the expiration of the Distribution Compliance Period not made in accordance with the provisions of Regulation S, pursuant to registration under the U.S. Securities Act or pursuant to an available exemption from such registration. 2.10 The Agent acknowledges that the Units, the Common Shares and Warrants comprising the Units and the Warrant Shares have not been registered under the U.S. Securities Act or applicable state securities laws and may not be offered or sold except outside the United States in accordance with Regulation S to persons who are not U.S. Persons. Thus, the Agent represents, warrants and covenants to the Corporation, without limiting the generality of Section 2.3 of this Agreement, as of the date of this Agreement and as of the Time of Closing, (which representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement), that it has offered and sold, and will offer and sell, the Units or Common Shares and Warrants comprising the Units only outside the United States in an Offshore Transaction in accordance with Rule 903 of Regulation S to persons who are not U.S. Persons or purchasing for the account or benefit of U.S. Persons. Accordingly, the Agent represents, warrants and covenants to the Corporation, as of the date of this Agreement and as of the Time of Closing, (which representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement), that: (a) neither it, nor any person acting on its behalf, has made or will make in connection therewith: (i) any offer to sell, or any solicitation of an offer to buy, any Units or Common Shares and Warrants comprising the Units to any person in the United States or U.S. Person; (ii) any sale of Units or Common Shares and Warrants comprising the Units to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States, not a U.S. Person and not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a U.S. Person or a person in the United States, or the Agent, or any persons acting on their behalf, reasonably believed that such Purchaser was outside the United States and not a U.S. Person, and was not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a U.S. Person or a person in the United States; or (iii) any Directed Selling Efforts in the United States with respect to the Units, either while any of the Units are being offered for sale or during the Distribution Compliance Period; and (b) any offering materials and documents (other than press releases) used in connection with offers and sales of the Securities prior to the expiration of the Distribution Compliance Period will include statements to the effect that the Securities have not been registered under the U.S. Securities Act and may not be offered or sold in the United States or to or for the account or benefit of, U.S. Persons unless registered under the U.S. Securities Act or an exemption from the registration requirements of the U.S. Securities Act is available and that hedging transactions involving the Securities may not be conducted unless in compliance with the U.S. Securities Act. Such statements will appear (i) on the cover or inside cover page of any material or memorandum; (ii) in the plan of distribution section of any prospectus or offering memorandum; and (iii) in any advertisement made or issued by the Corporation, any of its affiliates or any person acting on its or their behalf (other than the Agents, any member of the selling dealer group, their respective affiliates, or any person acting on any of their behalf, in respect of which no representation is made). 2.11 The Agent represents, warrants and covenants to the Corporation that: (a) it will not offer or sell any of the Securities, the Agent's Compensation Options or the Agent's Compensation Shares, prior to the expiration of the Distribution Compliance Period, except in compliance with the provisions of Rule 903 or Rule 904 of Regulation S (if available), or pursuant to an effective registration statement under the U.S. Securities Act or an available exemption from the registration requirements of the U.S. Securities Act; (b) it shall send to each dealer or other person receiving a selling concession, fee or other remuneration to which it sells Securities during the Distribution Compliance Period a confirmation or other notice setting forth the restrictions on offers and sales of the Securities in the United States or to or for the account or benefit of U.S. Persons in compliance with Rule 903(b)(3) of Regulation S; (c) it will not engage in hedging transactions with respect to the Securities, the Agent's Compensation Options or the Agent's Compensation Shares prior to the expiration of the Distribution Compliance Period, unless in compliance with the U.S. Securities Act; (d) it is not, and is not acquiring the Agent's Compensation Options on behalf of (as agent or otherwise), or for the account or benefit of, a person in the United States or a U.S. Person, and was not in the United States at the time it received the offer to acquire the Agent's Compensation Options or at the time it executed this Agreement; (e) it understands agrees that (i) the Agent's Compensation Options and the Agent's Compensation Shares have not been registered under the U.S. Securities Act or the securities laws of any state of the United States, (ii) absent such registration or an exemption therefrom, the Agent's Compensation Options and the Agent's Compensation Shares may not be sold, transferred or exercised, as applicable, and (iii) the certificates representing the Agent's Compensation Options and any Agent's Compensation Shares issued upon exercise thereof will bear such U.S. restrictive legend(s) as the Corporation, acting reasonably, may deem appropriate or necessary in order to comply with applicable United States securities laws; and (f) the Agent will not transfer beneficial ownership on its records or on accounts held on its behalf on the records of any depository, or request that any depository transfer beneficial ownership of the Securities unless the Agent reasonably believes at the time of such transfer that the transferor has complied with the transfer restrictions imposed on the legends set forth on the certificates evidencing such Securities.
Appears in 1 contract
Offering Terms. 2.1 3.1 The Units Offered Securities will be offered for sale by the Agent to Purchasers resident in the Qualifying Jurisdictions on a private placement basis and only at the Issue Price as contemplated hereinJurisdictions.
2.2 The Agent will comply with applicable laws, regulations and Exchange rules in connection with the offer to sell, or distribution of, the Units. The Agent will not, directly or indirectly, solicit offers to purchase or sell the Units so as to require the filing of a prospectus, offering memorandum or similar disclosure document with respect to the Units, the Common Shares, the Warrants, the Warrant Shares, the Agent's Compensation Options or the Agent's Compensation Shares under the laws of any of the Qualifying Jurisdictions. The Agent will use its best efforts to cause similar undertakings to be contained in any agreement among any members of the banking, selling or other group formed for the distribution of the Units, the Common Shares and the Warrants, and will require any member of the banking, selling or other group formed for the distribution of the Units to comply with applicable laws, including securities laws and regulations of any Qualifying Jurisdiction and Exchange rules.
2.3 3.2 The sale of the Units Offered Securities to Purchasers is to be effected by the Agent in a manner exempt from any prospectus, registration statement, prospectus or offering memorandum or similar disclosure document filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities. Authorities and, for offers and sales in the United States, in accordance with the requirements of the exemption from registration from US federal and state securities laws available under Rule 506 of Regulation D. The Agent will notify the Corporation with respect to the identity, location identity and jurisdiction of residence of each Purchaser (and for offers in a Qualifying Jurisdiction the United States, with respect to the jurisdiction of each US Offeree and US Purchaser) as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure compliance with all Applicable Securities Laws in connection with the sale of the Units Offered Securities to the Purchasers and offers of the Offered Securities to US Purchasers. The Corporation will have the final decision on the prospective Purchaser list.
2.4 3.3 The Agent will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and a properly completed and duly executed Selling Securityholder Notice and Questionnaire form of Accredited Investor Certificate or US Subscription Agreement and Accredited Investor Certificate, Minimum Amount Investment Certificateas applicable, or Foreign Purchaser Certificate, together with any additional documentation each in the form attached as may be requested by a Schedule to the ExchangeSubscription Agreement.
2.5 If 3.4 If, in the opinion of the Agent Agent, it is necessary, the Agent will form, manage and participate in a group of sub sub-agents to offer and sell the Units, the Common Shares and the Warrants Offered Securities as provided for hereunder. Each sub sub-agent shall be appropriately registered under the Applicable Securities Laws in their respective jurisdictions so as to permit it to lawfully offer and sell the Units, the Common Shares and the Warrants Offered Securities in such jurisdictions in which it offers and sells the Units, the Common Shares and the WarrantsOffered Securities. In the event that a selling group is formed, the Agent will:
(a) manage the selling group as and to the extent customary in the securities industry in Canada; and
(b) require each member of the selling group to offer and sell the Units, the Common Shares and the Warrants Offered Securities on the terms set forth in this Agreement.
2.6 3.5 Each FT Unit will consist of one FT Share and one-half of one FT Warrant. Each whole FT Warrant will entitle the holder to purchase one FT Warrant Share for a period of two years from the Closing Date at a price of $1.75 per FT Warrant Share. The FT Shares will have the attributes described in the form of Subscription Agreement for FT Units and the Agent shall have the benefit of the representations, warranties and covenants with respect to the FT Shares made by the Corporation in such form of Subscription Agreement as if such representation, warranties and covenants were contained herein.
3.6 Each Common Share Unit will consist of one Common Share and one-half of one Warrant. Each whole Warrant will entitle the holder to purchaser one Warrant Share for a period of two years from the Closing Date at a price of $1.25 per Warrant Share.
3.7 The Corporation covenants to use its reasonable best efforts to satisfy as expeditiously as possible, possible each of the conditions of the Exchange, if any, Exchange (the “Exchange Conditions”) required to be satisfied prior to the Exchange's admission ’s acceptance of the Common Shares for tradingCorporation’s notice of the Private Placement.
2.7 Neither 3.8 The terms and conditions of the Warrants, the FT Warrants, the Compensation Options, and the Fee Warrants and the attributes and characteristics of the Warrants, the FT Warrants, the Compensation Options and the Fee Warrants will be substantially as described in this Agreement subject to the changes, if any, that the Corporation nor and the Agent shall: (i) provide on its behalf and, with respect to prospective Purchasers any document or other material that would constitute an offering memorandum or future oriented financial information within the meaning Warrants and FT Warrants, on behalf of the Applicable Securities Laws of Canada or the United States or any state or territory thereof; or (iiPurchasers) engage in any form of general solicitation or general advertising in connection with the offer may agree to.
3.9 The Private Placement has not been and sale of the Units, including causing the sale of the Units to will not be advertised in any newspaper, magazine, printed public media, printed media or similar medium of general and regular paid circulation, broadcast over radio, television, interne or telecommunications, including electronic display, or conduct any seminar or meeting relating to the offer and sale of the Units whose attendees have been invited by general solicitation or advertisingway.
2.8 3.10 No selling or promotional expenses will be paid for or incurred in connection with the OfferingPrivate Placement, except for professional services or for services performed by a registered dealer, as provided for herein.
2.9 The Corporation shall refuse to register any transfer of any Securities or Agent's Compensation Options (including the underlying securities) made prior to the expiration of the Distribution Compliance Period not made in accordance with the provisions of Regulation S, pursuant to registration under the U.S. Securities Act or pursuant to an available exemption from such registration.
2.10 3.11 The Agent acknowledges that the Units, the Common Shares and Warrants comprising the Units and the Warrant Shares Securities have not been been, and will not be, registered under the U.S. Securities 1933 Act or applicable state securities laws and may not be offered or sold except outside the United States in accordance with Regulation S or, for offers in the United States, by the Agent through the US Affiliate, and sale by the Corporation, pursuant to persons who are not U.S. PersonsRule 506 of Regulation D in the manner described in paragraph (b) below (the “US Private Placement”). ThusAccordingly, the Agent represents, warrants and covenants to the Corporation, without limiting the generality of Section 2.3 section of this Agreement, that, with respect to each offer or sale of Securities, either (a) or (b) immediately following is true as of the date of this Agreement and as of the Time of ClosingClosing and the Closing Date, (which such representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement), that :
(a) it has offered and sold, and will offer and sell, the Units or Common Shares and Warrants comprising the Units only Securities outside the United States in an Offshore Transaction only in accordance with Rule 903 of Regulation S to persons who are not U.S. Persons or purchasing for and accordingly, neither the account or benefit of U.S. Persons. AccordinglyAgent, the Agent represents, warrants and covenants to the Corporation, as of the date of this Agreement and as of the Time of Closing, (which representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement), that:
(a) neither it, its affiliates nor any person persons acting on its their behalf, has made or will make in connection therewithmake:
(i) except as permitted under (b) in respect of the US Private Placement, any offer to sell, or any solicitation of an offer to buy, any Units or Common Shares and Warrants comprising the Units Securities to any person in the United States or U.S. to, or for the account or benefit of, a US Person;
(ii) any sale of Units or Common Shares and Warrants comprising the Units Securities to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States, States and not a U.S. Person and not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a U.S. Person or a person in the United StatesUS Person, or the Agent, or any persons such affiliate or person acting on their behalfbehalf of the Agent, reasonably believed that such Purchaser was outside the United States and not a U.S. US Person, and was not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a U.S. Person or a person in the United States; or
(iii) any Directed Selling Efforts in the United States with respect to the Units, either while any of the Units are being offered for sale or during the Distribution Compliance Period; and
(b) any offering materials and documents (other than press releases) used in connection with offers and sales of the Securities prior to the expiration of the Distribution Compliance Period will include statements to the effect that the Securities have not been registered under the U.S. Securities Act and may not be offered or sold in the United States or to or for the account or benefit of, U.S. Persons unless registered under the U.S. Securities Act or an exemption from the registration requirements of the U.S. Securities Act is available and that hedging transactions involving the Securities may not be conducted unless in compliance with the U.S. Securities Act. Such statements will appear (i) on the cover or inside cover page of any material or memorandum; (ii) in the plan of distribution section of any prospectus or offering memorandum; and (iii) in any advertisement made or issued by the Corporation, any of its affiliates or any person acting on its or their behalf (other than the Agents, any member of the selling dealer group, their respective affiliates, or any person acting on any of their behalf, in respect of which no representation is made).
2.11 The Agent represents, warrants and covenants to the Corporation that:
(a) it will not offer or sell any of the Securities, the Agent's Compensation Options or the Agent's Compensation Shares, prior to the expiration of the Distribution Compliance Period, except in compliance with the provisions of Rule 903 or Rule 904 of Regulation S (if available), or pursuant to an effective registration statement under the U.S. Securities Act or an available exemption from the registration requirements of the U.S. Securities Act;
(b) it shall send has offered and sold, and will offer and sell, Securities to each dealer or other person receiving a selling concession, fee or other remuneration to which it sells Securities during the Distribution Compliance Period a confirmation or other notice setting forth the restrictions on offers and sales of the Securities persons in the United States or to or for the account or benefit of U.S. Persons in compliance with Rule 903(b)(3) of Regulation S;
(c) it will not engage in hedging transactions with respect to the Securities, the Agent's Compensation Options or the Agent's Compensation Shares prior to the expiration of the Distribution Compliance Period, unless in compliance with the U.S. Securities Act;
(d) it is not, and is not acquiring the Agent's Compensation Options on behalf of (as agent or otherwise)to, or for the account or benefit of, US Persons, only in the following manner:
(i) the Agent has and will offer and sell the Securities in the United States only through its US Affiliate (if applicable), which was and is on the dates of such offers and sales a person duly registered broker or dealer pursuant to Section 15(b) of the 1934 Act and under the securities laws of each state in which such offers and sales were or are made (unless exempted from the respective state’s broker-dealer registration requirements) and was and is a member in good standing with the National Association of Securities Dealers, Inc.;
(ii) immediately prior to soliciting offerees, the Agent has or will have reasonable grounds to believe and did or will believe that each US Offeree and each US Purchaser was and is an US Accredited Investor;
(iii) no form of general solicitation or general advertising (as those terms are used in Regulation D) has been or will be used by the Agent or its affiliates, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Offered Securities in the United States;
(iv) any offer, sale or solicitation of an offer to buy Securities that has been made or will be made in the United States or a U.S. Personto US Persons was or will be made only to US accredited investors by the Agent through its US Affiliate (if applicable), and was in transactions that are exempt from registration under the 1933 Act and any applicable state securities laws and in accordance with any applicable US federal or state laws or regulations governing the registration and conduct of securities brokers and dealers;
(v) all US Offerees and US Purchasers shall be informed that the Securities have not been and will not be registered under the 1933 Act and the Securities are being offered and sold to such purchasers in reliance on an exemption from the registration requirements of the 1933 Act for non-public offerings. Each US Offeree and each US Purchaser shall be provided with disclosure substantially as follows: “The Securities have not been and will not be registered under the US Securities Act of 1933, as amended (the “1933 Act”) and are being offered and sold within the United States at only to accredited investors (as defined in Rule 501(a) of Regulation D under the time it received 1933 Act). Prospective purchasers of the offer to acquire Securities are hereby notified that the Agent's Compensation Options or at seller of the time it executed this AgreementSecurities is relying upon the exemption from the provisions of Section 5 of the 1933 Act provided in Section 4(2) of the 1933 Act for non-public offerings. The Securities offered hereby are not transferable except in accordance with the restrictions described herein.”;
(evi) it understands agrees that as a condition of the purchase of the Securities, each US Purchaser will be required to execute and deliver to the Agent the US Accredited Investor Certificate to the foregoing effect, among other terms and conditions;
(ivii) neither the Agent's Compensation Options and the Agent's Compensation Shares have not been registered under the U.S. Securities Act , its affiliates or the securities laws of any state of the United States, person acting on its behalf (ii) absent such registration or an exemption therefrom, the Agent's Compensation Options and the Agent's Compensation Shares may not be sold, transferred or exercised, as applicable, and (iii) the certificates representing the Agent's Compensation Options and any Agent's Compensation Shares issued upon exercise thereof will bear such U.S. restrictive legend(s) as other than the Corporation, its affiliates and any person acting reasonablyon their behalf, may deem appropriate as to which no representation is made) has taken or necessary will take, directly or indirectly, any action in order to comply violation of Regulation M under the 1934 Act in connection with applicable United States securities lawsthe offer and sale of the Securities; and
(fc) the Agent will not transfer beneficial ownership on and its records or on accounts held on its behalf on US Affiliate make the records of any depository, or request that any depository transfer beneficial ownership of the Securities unless the Agent reasonably believes at the time of such transfer that the transferor has complied with the transfer restrictions imposed on the legends representations and warranties set forth on the certificates evidencing such Securitiesout in Exhibit “1” – Agent’s Certificate.
Appears in 1 contract
Sources: Agency Agreement (Crosshair Exploration & Mining Corp)
Offering Terms. 2.1 3.1 The Units will be offered for sale by the Agent Agents to Purchasers resident in the Qualifying Jurisdictions on a private placement basis and only at the Issue Price as contemplated hereinJurisdictions.
2.2 The Agent will comply with applicable laws, regulations and Exchange rules in connection with the offer to sell, or distribution of, the Units. The Agent will not, directly or indirectly, solicit offers to purchase or sell the Units so as to require the filing of a prospectus, offering memorandum or similar disclosure document with respect to the Units, the Common Shares, the Warrants, the Warrant Shares, the Agent's Compensation Options or the Agent's Compensation Shares under the laws of any of the Qualifying Jurisdictions. The Agent will use its best efforts to cause similar undertakings to be contained in any agreement among any members of the banking, selling or other group formed for the distribution of the Units, the Common Shares and the Warrants, and will require any member of the banking, selling or other group formed for the distribution of the Units to comply with applicable laws, including securities laws and regulations of any Qualifying Jurisdiction and Exchange rules.
2.3 3.2 The sale of the Units to Purchasers is to be effected by the Agent Agents or the U.S. Affiliates (as applicable) in a manner exempt from any prospectus, registration statement, prospectus or offering memorandum or similar disclosure document filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory AuthoritiesAuthorities and for offers and sales of Units in the United States, in accordance with the requirements of an exemption from registration under United States federal and state securities laws. The Agent Agents will notify the Corporation with respect to the identity, location identity and jurisdiction of residence of each Purchaser in a Qualifying Jurisdiction as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure compliance with all Applicable Securities Laws in connection with the sale of the Units to the Purchasers. The Corporation will have the final decision on the prospective Purchaser list.
2.4 3.3 The Agent Agents will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and Agreement, a properly completed and duly executed Selling Securityholder Notice and Questionnaire and Accredited Investor Certificate, Minimum Amount Investment Certificate, Certificate or Foreign Purchaser CertificateU.S. Accredited Investor Certificate (as applicable), together with any additional documentation as may be requested by the ExchangeExchanges or by any Regulatory Authority pursuant to the Applicable Securities Laws.
2.5 If 3.4 If, in the opinion of the Agent Agents, it is necessary, the Agent Agents will form, manage and participate in a group of sub sub-agents to offer and sell the Units, the Common Shares and the Warrants Units as provided for hereunder. Each sub sub-agent shall be appropriately registered under the Applicable Securities Laws in their respective jurisdictions so as to permit it to lawfully offer and sell the Units, the Common Shares and the Warrants Units in such jurisdictions in which it offers and sells the Units, the Common Shares and the Warrants. In the event that a selling group is formed, the Agent Agents will:
(a) manage the selling group as and to the extent customary in the securities industry in Canada; and
(b) require each member of the selling group to offer and sell the Units, the Common Shares and the Warrants Units on the terms set forth in this Agreement.
2.6 3.5 The Corporation covenants to use its reasonable best efforts to satisfy as expeditiously as possible, each of the conditions of the Exchange, if any, Exchanges (the “Exchange Conditions”) required to be satisfied prior to the Exchange's admission Exchanges’ acceptance of the Common Shares for tradingCorporation’s notice of the Private Placement.
2.7 Neither 3.6 The terms, conditions attributes and characteristics of the Warrants will be substantially as described in this Agreement subject to the changes, if any, to which the Corporation nor and the Agent shall: (i) provide Agents may agree; provided that, with respect to prospective Purchasers any document or other the Warrants, changes of a material that would constitute an offering memorandum or future oriented financial information within nature are subject to the meaning prior written consent of the Applicable Securities Laws of Canada or the United States or any state or territory thereof; or (ii) engage in any form of general solicitation or general advertising in connection with the offer Purchasers, such consent not to be unreasonably withheld.
3.7 The Private Placement has not been and sale of the Units, including causing the sale of the Units to will not be advertised in any newspaper, magazine, printed public media, printed media or similar medium of general and regular paid circulation, broadcast over radio, television, interne or telecommunications, including electronic display, or conduct any seminar or meeting relating to the offer and sale of the Units whose attendees have been invited by general solicitation or advertisingway.
2.8 3.8 No selling or promotional expenses will be paid for or incurred in connection with the OfferingPrivate Placement, except for professional services or for services performed by a registered dealer, as provided for herein.
2.9 3.9 The Corporation shall refuse to register any transfer of any Securities or Agent's Compensation Options (including the underlying securities) made prior to the expiration of the Distribution Compliance Period not made in accordance with the provisions of Regulation S, pursuant to registration under the U.S. Securities Act or pursuant to an available exemption from such registration.
2.10 The Agent acknowledges Agents acknowledge that the Units, the Common Shares and Warrants comprising the Units and the Warrant Shares Securities have not been registered under the U.S. Securities 1933 Act or the applicable state securities laws of any state of the United States and may not be offered or sold except outside the United States to non-U.S. Persons in accordance with Regulation S or, for offers in the United States or to persons who are not U.S. Persons, by the Agents through the U.S. Affiliates, for sale by the Corporation, pursuant to Rule 506 of Regulation D in the manner described in paragraph (b) below (the “U.S. Private Placement”). ThusAccordingly, the Agent representsAgents represent, warrants warrant and covenants covenant to the Corporation, without limiting the generality of Section 2.3 section 3.2 of this Agreement, as of the date of this Agreement and as of the Time of Closing, (which representations, warranties Closing and covenants shall survive the completion of the transactions contemplated under this Agreement), that it has offered and sold, and will offer and sell, the Units or Common Shares and Warrants comprising the Units only outside the United States in an Offshore Transaction in accordance with Rule 903 of Regulation S to persons who are not U.S. Persons or purchasing for the account or benefit of U.S. Persons. Accordingly, the Agent represents, warrants and covenants to the Corporation, as of the date of this Agreement and as of the Time of ClosingClosing Date, (which representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement), that:
(a) except for offers and sales of Units that comply with paragraph (b) below, it has offered and sold, and will offer and sell, the Units only outside the United States to non-U.S. Persons in accordance with Rule 903 of Regulation S and accordingly, neither itthe Agents, the U.S. Affiliates, nor any person persons acting on its their behalf, has made or will make in connection therewith:
(i) any offer to sell, or any solicitation of an offer to buy, any Units or Common Shares and Warrants comprising the Units to any person in the United States or U.S. PersonOfferee;
(ii) any sale of Units or Common Shares and Warrants comprising the Units to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States, not a U.S. Person and not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a U.S. Person or a person in the United States, or the AgentAgents, the U.S. Affiliates or any persons acting on their behalf, reasonably believed that such Purchaser was outside the United States and not a U.S. Person, and was not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a U.S. Person or a person in the United States; or
(iii) any Directed Selling Efforts in the United States with respect to the Units, either while any of the Units are being offered for sale or during the Distribution Compliance Period; andSecurities.
(b) it will only offer and sell Units to U.S. Offerees in the following manner:
(i) the Agents have offered and sold, and will offer and sell the Units only through the U.S. Affiliates, which were and are on the dates of such offers and sales duly registered brokers or dealers pursuant to section 15(b) of the 1934 Act and under the securities laws of each state in which such offers and sales were or are made (unless exempted from the respective state’s broker-dealer registration requirements) and were and are a member in good standing with the National Association of Securities Dealers, Inc.;
(ii) immediately prior to soliciting U.S. Offerees and making sales of the Units, each of the Agents, the U.S. Affiliates, their affiliates and any person acting on their behalf has or will have reasonable grounds to believe and did or will believe that each U.S. Offeree and each U.S. Purchaser, as applicable, was and is a U.S. Accredited Investor;
(iii) no form of general solicitation or general advertising (as those terms are used in Regulation D) or any manner involving a public offering materials and documents (within the meaning of section 4(2) of the 1933 Act has been or will be used by the Agents, the U.S. Affiliates, their affiliates or anyone acting on their behalf or its affiliates, including, but not limited to, advertisements, articles, notices or other than press releases) used communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with offers and sales the offer or sale of the Securities prior Units to U.S. Offerees;
(iv) any offer, sale or solicitation of an offer to buy Units that has been made or will be made to U.S. Offerees, was or will be made only to U.S. Accredited Investors by the expiration Agents through their respective U.S. Affiliates, and in transactions that are exempt from registration pursuant to Rule 506 of Regulation D under the Distribution Compliance Period will include statements to 1933 Act and under any applicable state securities laws and in accordance with any applicable U.S. federal and state laws and regulations governing the effect registration and conduct of securities brokers and dealers;
(v) all U.S. Offerees and U.S. Purchasers shall be informed that the Securities have not been registered under the U.S. Securities Act and may not be offered or sold in the United States or to or for the account or benefit of, U.S. Persons unless registered under the U.S. Securities 1933 Act or applicable securities laws of any state and the Securities are being offered and sold to such persons in reliance on an exemption from the registration requirements of the 1933 Act and any state securities laws;
(vi) as a condition of the purchase of the Units, each U.S. Securities Act is available Purchaser will be required to execute and that hedging transactions involving deliver to the Securities may not be conducted unless Agents a Subscription Agreement, including the U.S. Accredited Investor Certificate, among other terms and conditions;
(vii) at least 24 hours in compliance advance of the Closing, the Agents will deliver to the Corporation a list of the U.S. Purchasers, together with the U.S. Securities Act. Such statements will appear (i) on the cover or inside cover page of any material or memorandum; (ii) materials described in the plan of distribution section of any prospectus or offering memorandum; and foregoing paragraph;
(iiiviii) in any advertisement made or issued by neither the CorporationAgents, any of its their affiliates or nor any person acting on its or their behalf (other than the AgentsCorporation, any member of the selling dealer group, their respective affiliates, or its affiliates and any person acting on any of their behalf, in respect of as to which no representation is made).) has taken or will take, directly or indirectly, any action in violation of Regulation M under the 1934 Act in connection with the offer and sale of the Securities;
2.11 The Agent represents, warrants (ix) it has not entered and covenants will not enter into any contractual arrangement with respect to the Corporation that:
(a) it will not offer or sell any distribution of the Securities, except with their affiliates, any selling group members, or with the Agent's Compensation Options or prior written consent of the Agent's Compensation SharesCorporation. It shall require each selling group member to agree in writing, prior to comply with, and shall use their best efforts to ensure that each selling group member complies with, the same provisions of this section 3.9(b) as apply to the expiration of the Distribution Compliance Period, except in compliance with the Agents as if such provisions of Rule 903 or Rule 904 of Regulation S (if available), or pursuant applied to an effective registration statement under the U.S. Securities Act or an available exemption from the registration requirements of the U.S. Securities Actsuch selling group member;
(bx) it shall send to each dealer or other person receiving a selling concession, fee or other remuneration to which it sells Securities during the Distribution Compliance Period a confirmation or other notice setting forth the restrictions on all offers and sales of the Securities Units in the United States or to or for U.S. Offerees have been and will be made through the account or benefit of U.S. Persons in compliance with Rule 903(b)(3) of Regulation S;
(c) it will not engage in hedging transactions with respect to the Securities, the Agent's Compensation Options or the Agent's Compensation Shares prior to the expiration Affiliates and all sales of the Distribution Compliance Period, unless in compliance with the U.S. Securities Act;
(d) it is not, and is not acquiring the Agent's Compensation Options on behalf of (as agent or otherwise), or for the account or benefit of, a person Units in the United States or a to U.S. Person, and was not in Purchasers will be made by the United States at Corporation to Accredited Investors designated by the time it received U.S. Affiliates or by the offer to acquire Agents through the Agent's Compensation Options or at the time it executed this AgreementU.S. Affiliates;
(e) it understands agrees that (ixi) the Agent's Compensation Options and Agents shall give the Agent's Compensation Shares have not been registered under Corporation reasonable notice of the U.S. Securities Act or jurisdictions in which it proposes to offer and sell the securities laws of Units, so as to assist the Corporation in satisfying its obligations under this Agreement and to permit the Corporation to timely submit any state and all filings required of the United States, (ii) absent such registration or an exemption therefrom, the Agent's Compensation Options 1933 Act and the Agent's Compensation Shares may not be sold, transferred or exercised, as applicable, and (iii) the certificates representing the Agent's Compensation Options and any Agent's Compensation Shares issued upon exercise thereof will bear such U.S. restrictive legend(s) as the Corporation, acting reasonably, may deem appropriate or necessary in order to comply with applicable United States state securities laws; and
(fxii) the Agent will not transfer beneficial ownership on its records or on accounts held on its behalf on the records of any depository, or request that any depository transfer beneficial ownership representations and warranties and covenants of the Securities unless Agents contained in this section 3.9(b) shall be true and correct as of the Agent reasonably believes Closing, with the same force and effect as if then made by the Agents.
(c) at the time of such transfer that Closing, the transferor has complied with Agents and the transfer restrictions imposed on U.S. Affiliates will execute and deliver to the legends Corporation, and will make the representations and warranties set forth on the certificates evidencing such Securitiesout in Exhibit “1” – Agents’ Certificate.
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Offering Terms. 2.1 3.1 The Units Shares will be offered for sale by the Agent Agents, as agents on behalf of the Corporation, to Purchasers resident in the Qualifying Jurisdictions on a private placement basis and only at the Issue Price as contemplated hereinJurisdictions.
2.2 The Agent will comply with applicable laws, regulations and Exchange rules in connection with the offer to sell, or distribution of, the Units. The Agent will not, directly or indirectly, solicit offers to purchase or sell the Units so as to require the filing of a prospectus, offering memorandum or similar disclosure document with respect to the Units, the Common Shares, the Warrants, the Warrant Shares, the Agent's Compensation Options or the Agent's Compensation Shares under the laws of any of the Qualifying Jurisdictions. The Agent will use its best efforts to cause similar undertakings to be contained in any agreement among any members of the banking, selling or other group formed for the distribution of the Units, the Common Shares and the Warrants, and will require any member of the banking, selling or other group formed for the distribution of the Units to comply with applicable laws, including securities laws and regulations of any Qualifying Jurisdiction and Exchange rules.
2.3 3.2 The sale of the Units Shares to Purchasers is to be effected by the Agent Agents in a manner exempt from any prospectus, registration statement, prospectus or offering memorandum or similar disclosure document filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities. The Agent Agents will notify the Corporation with respect to the identity, location identity and jurisdiction of residence of each Purchaser in a Qualifying Jurisdiction as soon as practicable and with a view to affording sufficient time to allow the Corporation to secure confirm compliance with all Applicable Securities Laws in connection with the sale of the Units Shares to the Purchasers. The Corporation will have the final decision on the prospective Purchaser list.
2.4 3.3 The Agent Agents will obtain from each Purchaser a properly completed and duly executed Subscription Agreement and a properly completed and duly executed Selling Securityholder Notice form of Accredited Investor questionnaire, as applicable, and a properly completed and duly executed TSX Private Placement Questionnaire and Accredited Investor CertificateUndertaking, Minimum Amount Investment Certificate, or Foreign Purchaser Certificateeach in the form attached as a Schedule to the Subscription Agreement, together with any additional documentation as may be requested by the Exchange.
2.5 If 3.4 If, in the opinion of the Agent Agents, it is necessary, the Agent Agents will form, manage and participate in a group of sub sub-agents to offer and sell the Units, the Common Shares and the Warrants as provided for hereunder. Each sub sub-agent shall be appropriately registered under the Applicable Securities Laws in their respective jurisdictions so as to permit it to lawfully offer and sell the Units, the Common Shares and the Warrants in such jurisdictions in which it offers and sells the Units, the Common Shares and the WarrantsShares. In the event that a selling group is formed, the Agent Agents will:
(a) manage the selling group as and to the extent customary in the securities industry in Canada; and
(b) require each member of the selling group to offer and sell the Units, the Common Shares and the Warrants on the terms set forth in this Agreement.
2.6 3.5 The Corporation covenants to use its reasonable commercial best efforts to satisfy as expeditiously as possible, each of the conditions of the Exchange, if any, Exchange (the "Exchange Conditions") required to be satisfied prior to the Exchange's admission acceptance of the Common Shares for tradingCorporation's notice of the Private Placement.
2.7 Neither 3.6 The terms and conditions of the Compensation Options and the attributes and characteristics of the Compensation Options will be substantially as described in this Agreement subject to the changes, if any, that the Corporation nor and the Agent shall: Agents (ieach on its behalf) provide to prospective Purchasers any document or other material that would constitute an offering memorandum or future oriented financial information within the meaning may agree to.
3.7 The Corporation and each of the Applicable Securities Laws of Canada or Agents confirms that the United States or any state or territory thereof; or (ii) engage in any form of general solicitation or general advertising in connection with the offer Private Placement has not been, and sale of the Unitsagrees that it will not be, including causing the sale of the Units to be advertised in any newspaper, magazine, printed public media, printed media or similar medium of general and regular paid circulation, broadcast over radio, television, interne or telecommunications, including electronic display, or conduct any seminar or meeting relating to the offer and sale of the Units whose attendees have been invited by general solicitation or advertisingway.
2.8 3.8 No selling or promotional expenses will be paid for or incurred in connection with the OfferingPrivate Placement, except for professional services or for services performed by a registered dealer, as provided for herein.
2.9 3.9 The Corporation shall refuse to register any transfer of any Securities or Agent's Agents acknowledge that the Shares, the Commission Shares, the Corporate Finance Fee Shares, the Compensation Options (including the underlying securities) made prior to the expiration of the Distribution Compliance Period not made in accordance with the provisions of Regulation S, pursuant to registration under the U.S. Securities Act or pursuant to an available exemption from such registration.
2.10 The Agent acknowledges that the Units, the Common Shares and Warrants comprising the Units and the Warrant Compensation Option Shares have not been been, and will not be, registered under the U.S. Securities 1933 Act or applicable state securities laws and may not be offered or sold except outside the United States in accordance with Regulation S to persons who are not U.S. Persons. Thus, the Agent represents, warrants and covenants to the Corporation, without limiting the generality of Section 2.3 of this Agreement, as of the date of this Agreement and as of the Time of Closing, (which representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement), that it has offered and sold, and will offer and sell, the Units or Common Shares and Warrants comprising the Units only outside the United States in an Offshore Transaction in accordance with Rule 903 of Regulation S to persons who are not U.S. Persons or purchasing for the account or benefit of U.S. Persons. Accordingly, the Agent represents, warrants and covenants to the Corporation, as of the date of this Agreement and as of the Time of Closing, (which representations, warranties and covenants shall survive the completion of the transactions contemplated under this Agreement), that:
(a) neither it, nor any person acting on its behalf, has made or will make in connection therewith:
(i) any offer to sell, or any solicitation of an offer to buy, any Units or Common Shares and Warrants comprising the Units to any person in the United States or U.S. Person;
(ii) any sale of Units or Common Shares and Warrants comprising the Units to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States, not a U.S. Person and not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a U.S. Person or a person in the United States, or the Agent, or any persons acting on their behalf, reasonably believed that such Purchaser was outside the United States and not a U.S. Person, and was not purchasing the Units or Common Shares and Warrants comprising the Units for the account or benefit of a U.S. Person or a person in the United States; or
(iii) any Directed Selling Efforts in the United States with respect to the Units, either while any of the Units are being offered for sale or during the Distribution Compliance Period; and
(b) any offering materials and documents (other than press releases) used in connection with offers and sales of the Securities prior to the expiration of the Distribution Compliance Period will include statements to the effect that the Securities have not been registered under the U.S. Securities Act and may not be offered or sold in the United States or to or for the account or benefit of, U.S. Persons unless registered under the U.S. Securities Act or an exemption from the registration requirements of the U.S. Securities Act is available and that hedging transactions involving the Securities may not be conducted unless in compliance with the U.S. Securities Act. Such statements will appear (i) on the cover or inside cover page of any material or memorandum; (ii) in the plan of distribution section of any prospectus or offering memorandum; and (iii) in any advertisement made or issued by the Corporation, any of its affiliates or any person acting on its or their behalf (other than the Agents, any member of the selling dealer group, their respective affiliates, or any person acting on any of their behalf, in respect of which no representation is made).
2.11 The Agent represents, warrants and covenants to the Corporation that:
(a) it will not offer or sell any of the Securities, the Agent's Compensation Options or the Agent's Compensation Shares, prior to the expiration of the Distribution Compliance Period, except in compliance with the provisions of Rule 903 or Rule 904 of Regulation S (if available), or pursuant to an effective registration statement under the U.S. Securities Act or an available exemption from the registration requirements of the U.S. Securities Act;
(b) it shall send to each dealer or other person receiving a selling concession, fee or other remuneration to which it sells Securities during the Distribution Compliance Period a confirmation or other notice setting forth the restrictions on offers and sales of the Securities in the United States or to or for the account or benefit of U.S. Persons in compliance with Rule 903(b)(3) of Regulation S;
(c) it will not engage in hedging transactions with respect to the Securities, the Agent's Compensation Options or the Agent's Compensation Shares prior to the expiration of the Distribution Compliance Period, unless in compliance with the U.S. Securities Act;
(d) it is not, and is not acquiring the Agent's Compensation Options on behalf of (as agent or otherwise), or for the account or benefit of, a person in the United States or a U.S. Person, and was not in the United States at the time it received the offer to acquire the Agent's Compensation Options or at the time it executed this Agreement;
(e) it understands agrees that (i) the Agent's Compensation Options and the Agent's Compensation Shares have not been registered under the U.S. Securities Act or the securities laws of any state of the United States, (ii) absent such registration or an exemption therefrom, the Agent's Compensation Options and the Agent's Compensation Shares may not be sold, transferred or exercised, as applicable, and (iii) the certificates representing the Agent's Compensation Options and any Agent's Compensation Shares issued upon exercise thereof will bear such U.S. restrictive legend(s) as the Corporation, acting reasonably, may deem appropriate or necessary in order to comply with applicable United States securities laws; and
(f) the Agent will not transfer beneficial ownership on its records or on accounts held on its behalf on the records of any depository, or request that any depository transfer beneficial ownership of the Securities unless the Agent reasonably believes at the time of such transfer that the transferor has complied with the transfer restrictions imposed on the legends set forth on the certificates evidencing such Securities.S.
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