Offering Terms. 3.1 The Units will be offered for sale by the Agents to Purchasers resident in the Qualifying Jurisdictions. 3.2 The sale of the Units to Purchasers is to be effected by the Agents or the U.S. Affiliates (as applicable) in a manner exempt from any prospectus or offering memorandum filing or delivery requirements of the Applicable Securities Laws and without the necessity of obtaining any order or ruling of the Regulatory Authorities 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 Agents will notify the Corporation with respect to the identity and jurisdiction of residence of each 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 to the Purchasers. 3.3 The Agents will obtain from each Purchaser a properly completed and duly executed Subscription Agreement, a properly completed and duly executed Accredited Investor Certificate or U.S. Accredited Investor Certificate (as applicable), together with any additional documentation as may be requested by the Exchanges or by any Regulatory Authority pursuant to the Applicable Securities Laws. 3.4 If, in the opinion of the Agents, it is necessary, the Agents will form, manage and participate in a group of sub-agents to offer and sell the Units as provided for hereunder. Each sub-agent shall be appropriately registered under the Applicable Securities Laws so as to permit it to lawfully offer and sell the Units in such jurisdictions in which it offers and sells the Units. In the event that a selling group is formed, the 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 on the terms set forth in this Agreement. 3.5 The Corporation covenants to use its best efforts to satisfy as expeditiously as possible, each of the conditions of the Exchanges (the “Exchange Conditions”) required to be satisfied prior to the Exchanges’ acceptance of the Corporation’s notice of the Private Placement. 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 and the Agents may agree; provided that, with respect to the Warrants, changes of a material nature are subject to the prior written consent of the Purchasers, such consent not to be unreasonably withheld. 3.7 The Private Placement has not been and will not be advertised in any way. 3.8 No selling or promotional expenses will be paid or incurred in connection with the Private Placement, except for professional services or for services performed by a registered dealer, as provided for herein. 3.9 The Agents acknowledge that the Securities have not been registered under the 1933 Act or the applicable 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 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”). Accordingly, the Agents represent, warrant and covenant to the Corporation, without limiting the generality of section 3.2 of this Agreement, as of the date of this Agreement and as of the Time of Closing and the Closing 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 the Agents, the U.S. Affiliates, nor any persons acting on 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 to any U.S. Offeree; (ii) any sale of Units to any Purchaser unless, at the time the buy order was or will have been originated, the Purchaser was outside the United States, or the Agents, the U.S. Affiliates or any persons acting on their behalf, reasonably believed that such Purchaser was outside the United States; or (iii) any Directed Selling Efforts in the United States with respect to any of the Securities. (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 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 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 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 Agents through their respective U.S. Affiliates, and in transactions that are exempt from registration pursuant to Rule 506 of Regulation D under the 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 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 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. Purchaser will be required to execute and deliver to the Agents a Subscription Agreement, including the U.S. Accredited Investor Certificate, among other terms and conditions; (vii) at least 24 hours in advance of the Closing, the Agents will deliver to the Corporation a list of the U.S. Purchasers, together with the materials described in the foregoing paragraph; (viii) neither the Agents, their affiliates nor any person acting on their behalf (other than the Corporation, its affiliates and any person acting on their behalf, 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; (ix) it has not entered and will not enter into any contractual arrangement with respect to the distribution of the Securities, except with their affiliates, any selling group members, or with the prior written consent of the Corporation. It shall require each selling group member to agree in writing, 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 Agents as if such provisions applied to such selling group member; (x) all offers of the Units in the United States or to U.S. Offerees have been and will be made through the U.S. Affiliates and all sales of the Units in the United States or to U.S. Purchasers will be made by the Corporation to Accredited Investors designated by the U.S. Affiliates or by the Agents through the U.S. Affiliates; (xi) the Agents shall give the Corporation reasonable notice of the U.S. jurisdictions in which it proposes to offer and sell the Units, so as to assist the Corporation in satisfying its obligations under this Agreement and to permit the Corporation to timely submit any and all filings required of the 1933 Act and applicable state securities laws; and (xii) the representations and warranties and covenants of the Agents contained in this section 3.9(b) shall be true and correct as of the Closing, with the same force and effect as if then made by the Agents. (c) at the Closing, the Agents and the U.S. Affiliates will execute and deliver to the Corporation, and will make the representations and warranties set out in Exhibit “1” – Agents’ Certificate.
Appears in 1 contract
Offering Terms. 3.1 2.1 The Units will be offered for sale by the Agents Agent to Purchasers resident in the Qualifying JurisdictionsJurisdictions on a private placement basis and only at the Issue Price as contemplated herein.
3.2 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 Agents or the U.S. Affiliates (as applicable) Agent in a manner exempt from any prospectus or 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 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 lawsAuthorities. The Agents Agent will notify the Corporation with respect to the identity identity, location 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.
3.3 2.4 The Agents Agent will obtain from each Purchaser a properly completed and duly executed Subscription Agreement, Agreement and a properly completed and duly executed Selling Securityholder Notice and Questionnaire and Accredited Investor Certificate Certificate, Minimum Amount Investment Certificate, or U.S. Accredited Investor Certificate (as applicable)Foreign Purchaser Certificate, together with any additional documentation as may be requested by the Exchanges or by any Regulatory Authority pursuant to the Applicable Securities LawsExchange.
3.4 If, 2.5 If in the opinion of the Agents, Agent it is necessary, the Agents Agent will form, manage and participate in a group of sub-sub agents to offer and sell the Units 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 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 Agents 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 Units, the Common Shares and the Warrants on the terms set forth in this Agreement.
3.5 2.6 The Corporation covenants to use its reasonable best efforts to satisfy as expeditiously as possible, each of the conditions of the Exchanges (the “Exchange Conditions”) Exchange, if any, required to be satisfied prior to the Exchanges’ acceptance Exchange's admission of the Corporation’s notice 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 Private Placement.
3.6 The terms, conditions attributes 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 characteristics sale of the Warrants will be substantially as described in this Agreement subject to Units, including causing the changes, if any, to which the Corporation and the Agents may agree; provided that, with respect to the Warrants, changes of a material nature are subject to the prior written consent sale of the Purchasers, such consent not Units to be unreasonably withheld.
3.7 The Private Placement has not been and will not be advertised in any waynewspaper, 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.
3.8 2.8 No selling or promotional expenses will be paid for or incurred in connection with the Private PlacementOffering, except for professional services or for services performed by a registered dealer, as provided for herein.
3.9 2.9 The Agents acknowledge 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 Securities Units, the Common Shares and Warrants comprising the Units and the Warrant Shares have not been registered under the 1933 U.S. Securities 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”). AccordinglyThus, the Agents representAgent represents, warrant warrants and covenant covenants to the Corporation, without limiting the generality of section 3.2 Section 2.3 of this Agreement, as of the date of this Agreement and as of the Time of Closing Closing, (which representations, warranties and covenants shall survive the Closing Datecompletion 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) 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 the Agents, the U.S. Affiliatesit, nor any persons person acting on their 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. OffereePerson;
(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 AgentsAgent, 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 Securities.Units are being offered for sale or during the Distribution Compliance Period; and
(b) it will only offer any offering materials and sell Units to U.S. Offerees documents (other than press releases) used 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 connection with 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 the expiration of the Units, each of Distribution Compliance Period will include statements to 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 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 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 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 Agents through their respective U.S. Affiliates, and in transactions that are exempt from registration pursuant to Rule 506 of Regulation D under the 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 registration and conduct of securities brokers and dealers;
(v) all U.S. Offerees and U.S. Purchasers shall be informed effect that the Securities have not been registered under the 1933 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 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 U.S. Securities Act is available and any state securities laws;
(vi) as a condition of that hedging transactions involving the purchase of the Units, each U.S. Purchaser will Securities may not be required to execute and deliver to the Agents a Subscription Agreement, including conducted unless in compliance with the U.S. Accredited Investor Certificate, among other terms and conditions;
Securities Act. Such statements will appear (viii) at least 24 hours in advance on the cover or inside cover page of the Closing, the Agents will deliver to the Corporation a list of the U.S. Purchasers, together with the materials described any material or memorandum; (ii) in the foregoing paragraph;
plan of distribution section of any prospectus or offering memorandum; and (viiiiii) neither in any advertisement made or issued by the AgentsCorporation, their any of its affiliates nor or any person acting on its or their behalf (other than the CorporationAgents, its affiliates and any member of the selling dealer group, their respective affiliates, or any person acting on any of their behalf, as to in respect of which no representation is made) has taken or will take).
2.11 The Agent represents, directly or indirectly, any action in violation of Regulation M under warrants and covenants to the 1934 Act in connection with the offer and sale of the Securities;Corporation that:
(ixa) it has not entered and will not enter into offer or sell any contractual arrangement with respect to the distribution 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 their affiliates, any selling group membersthe provisions of Rule 903 or Rule 904 of Regulation S (if available), or with pursuant to an effective registration statement under the prior written consent U.S. Securities Act or an available exemption from the registration requirements of the Corporation. It shall require each selling group member to agree in writing, 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 Agents as if such provisions applied to such selling group memberU.S. Securities Act;
(xb) all 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 Units Securities in the United States or to or for the account or benefit of U.S. Offerees have been and Persons in compliance with Rule 903(b)(3) of Regulation S;
(c) it will be made through 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. Affiliates Securities Act;
(d) it is not, and all sales is not acquiring the Agent's Compensation Options on behalf of (as agent or otherwise), or for the Units 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 U.S. Purchasers will be made by acquire the Corporation to Accredited Investors designated by Agent's Compensation Options or at the U.S. Affiliates or by the Agents through the U.S. Affiliatestime it executed this Agreement;
(xie) it understands agrees that (i) the Agents shall give Agent's Compensation Options and the Corporation reasonable notice 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. jurisdictions restrictive legend(s) as the Corporation, acting reasonably, may deem appropriate or necessary in which it proposes order to offer and sell the Units, so as to assist the Corporation in satisfying its obligations under this Agreement and to permit the Corporation to timely submit any and all filings required of the 1933 Act and comply with applicable state United States securities laws; and
(xiif) the representations and warranties and covenants 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 Agents contained in this section 3.9(b) shall be true and correct as Securities unless the Agent reasonably believes at the time of such transfer that the Closing, transferor has complied with the same force and effect as if then made by transfer restrictions imposed on the Agentslegends set forth on the certificates evidencing such Securities.
(c) at the Closing, the Agents and the U.S. Affiliates will execute and deliver to the Corporation, and will make the representations and warranties set out in Exhibit “1” – Agents’ Certificate.
Appears in 1 contract