Prospectus Qualification. The Corporation covenants with the Underwriters that: (a) the Corporation shall elect and comply in all material respects with the Prospectus Review Procedures and in connection with such procedures shall use reasonable commercial efforts to: (i) as soon as reasonably practicable after the Closing Date, prepare and file a preliminary short form prospectus (the "Preliminary Prospectus") and other documents required under Canadian Securities Laws with the Securities Regulators of the Qualifying Provinces in order to qualify for distribution the Underlying Securities, and obtain a preliminary receipt from the Principal Regulator for the Preliminary Prospectus evidencing that a receipt has been deemed to be issued for the Preliminary Prospectus (the "Preliminary Receipt") in each of the Qualifying Provinces; (ii) as soon as reasonably practicable after any comments of the Securities Regulators of the Qualifying Provinces in connection with the Preliminary Prospectus have been satisfied: (A) prepare and file the Final Prospectus, (together with the Preliminary Prospectus, the "Prospectuses") and other documents, including the consents of qualified persons, required under the Canadian Securities Laws with the Securities Regulators of the Qualifying Provinces in order to qualify for distribution the Underlying Securities, and (B) obtain the Final Receipt from the Principal Regulator; (iii) until the completion of the distribution of the Underlying Securities, promptly take or cause to be taken all additional steps and proceedings that from time to time may be required under Canadian Securities Laws to continue to qualify the Underlying Securities for distribution in the Qualifying Provinces or, in the event that the Underlying Securities have, for any reason, ceased to so qualify, to use reasonable commercial efforts to again qualify the Underlying Securities for distribution; (iv) prior to the filing of the Preliminary Prospectus and the Final Prospectus, respectively, and prior to the filing with any Securities Regulators of any Supplementary Material, allow the Underwriters and the Underwriters' Counsel to participate fully in the preparation of and to approve the form of such documents, such approval which will not be unreasonably withheld; (v) ensure that the descriptions of the Special Warrants and Underlying Securities in the Prospectuses are true, complete and accurate descriptions of the rights, privileges, restrictions and conditions attaching to such securities; and (vi) otherwise fulfill all reasonably necessary legal requirements to enable the Underlying Securities to be distributed in each of the Qualifying Provinces; (b) the Corporation shall deliver or cause to be delivered, at its own cost, to the Underwriters and the Underwriters' Counsel the documents set out below at the respective times indicated: (i) as nearly as practicable with the filing with Securities Regulators of the Qualifying Provinces of each of the Preliminary Prospectus and the Final Prospectus, copies of the Preliminary Prospectus and the Final Prospectus, signed as required by the Canadian Securities Laws of the Qualifying Provinces; (ii) as soon as available, copies of any Supplementary Material, if required, signed as required by the Canadian Securities Laws of the Qualifying Provinces; (iii) contemporaneously with or prior to the filing of the Final Prospectus, a long-form "comfort letter" from the auditors of the Corporation, dated the date of the Final Prospectus, addressed to the Underwriters and satisfactory in form and substance to the Underwriters and the Underwriters' Counsel, acting reasonably, containing statements and information of the type ordinarily included in auditors' comfort letters to an agent in connection with securities offerings in Canada with respect to certain financial and accounting information relating to the Corporation in the Prospectuses which comfort letter shall be based on the auditors review having a cut-off date of not more than two Business Days prior to the date of the Final Prospectus; (iv) as soon as practicable after the filing of the Prospectuses, commercial copies of the Prospectuses and any Supplementary Material in such numbers and delivered to such cities as the Underwriters may reasonably request by written instructions to the Corporation, or the printer of the Corporation, provided no later than the time when the Corporation authorizes the printing of the commercial copies of the Preliminary Prospectus and the Final Prospectus, respectively; and (v) on the Qualification Date, a certificate of the Corporation dated the Qualification Date, addressed to the Underwriters and signed on the Corporation's behalf by its Chief Executive Officer, Chief Financial Officer or such other officer or director of the Corporation satisfactory to the Underwriters, acting reasonably, certifying that: (A) the Corporation has materially complied with and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Qualification Date, (B) the representations and warranties of the Corporation contained in this Agreement are true and correct in all material respects at the Qualification Date; (C) the Due Diligence Session Responses provided by the Corporation in respect of the Due Diligence Session(s) held in connection with the filing of the Final Prospectus are true and correct and would not be different in any material respect if the Due Diligence Session were held immediately prior to the Qualification Date, (D) the Corporation has made and/or obtained on or prior to the Qualification Date, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any applicable agreement or document to which the Corporation is a party or by which it is bound, required for the distribution of the Underlying Securities (subject to completion of filings with certain regulatory authorities following the Qualification Date, as applicable), and (E) no order, ruling or determination having the effect of suspending the distribution of the Underlying Securities or cease trading of the Common Shares (including the Warrant Shares and the Compensation Warrant Shares) or any other securities of the Corporation 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 officer of the Corporation, contemplated or threatened under any Canadian Securities Laws or by any other regulatory authority. (c) each delivery of the Preliminary Prospectus, the Final Prospectus or any Supplementary Material, as applicable, shall constitute a representation and warranty to the Underwriters by the Corporation (and the Corporation hereby acknowledges that the Underwriters are relying on such representations and warranties in entering into this agreement) that: (i) the Preliminary Prospectus, Final Prospectus or any Supplementary Material, as applicable: (A) is, at the respective date of such document, true and correct in all material respects, (B) contain no misrepresentation, and (C) contain full, true and plain disclosure of all material facts relating to the Corporation and the Underlying Securities as required under Canadian Securities Laws of the Qualifying Provinces; (d) until the completion of the distribution of the Underlying Securities, the Corporation will promptly inform the Underwriters of: (i) any request of any relevant Securities Regulator for any amendment to the Preliminary Prospectus, the Final Prospectus or any other part of the Public Record or for any additional information; (ii) the receipt by the Corporation of any communication from any relevant Securities Regulator, the TSX-V or any other competent authority relating to any part of the Public Record or the distribution of the Special Warrants, the Underlying Securities, the Warrant Shares, the Compensation Warrants or the Compensation Warrant Shares; and (iii) the issuance by relevant Securities Regulator, the TSX-V or by any other competent authority of any order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose; (e) until the completion of the distribution of the Underlying Securities, the Corporation will promptly inform the Underwriters of the full particulars of: (i) any material change (actual, anticipated, contemplated or threatened) in the business, affairs, operations, capital or condition (financial or otherwise) of the Corporation or its properties or assets; (ii) any material fact which has arisen or has been discovered and is required to be stated in the Preliminary Prospectus, the Final Prospectus or any Supplementary Material or which would have been required to have been stated in the Preliminary Prospectus, the Final Prospectus or any Supplementary Material had the fact arisen or been discovered on, or prior to, the date of such document; and (iii) any change in any material fact (which for the purposes of this Agreement shall be deemed to include the disclosure of any previously undisclosed material fact) contained in the Public Record, the Preliminary Prospectus, the Final Prospectus or any Supplementary Material which change is, or may be, of such a nature as to render any statement in the Public Record, the Preliminary Prospectus, the Final Prospectus or any Supplementary Material misleading or untrue in any material respect or which would result in a misrepresentation in the Public Record, the Preliminary Prospectus, the Final Prospectus or any Supplementary Material or which would result in the Public Record, the Preliminary Prospectus, the Final Prospectus or any Supplementary Material not complying with Canadian Securities Laws, provided that if the Corporation is uncertain as to whether a material change, change, occurrence or event of the nature referred to in this Section 6(e) has occurred, the Corporation shall promptly inform the Underwriters of the full particulars of the occurrence giving rise to the uncertainty and shall consult with the Underwriters as to whether the occurrence is of such a nature; (f) the Corporation will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Underwriters and the Underwriters' Counsel, with Canadian Securities Laws with respect to any material change or change, occurrence or event of the nature referred to in Sections 6(d) and 6(e) and the Corporation will prepare and file promptly at the Underwriters' request, acting reasonably, any amendment to the Preliminary Prospectus, the Final Prospectus or Supplementary Material as may be required under Canadian Securities Laws of the Qualifying Provinces; provided, however, that the Corporation shall have allowed the Underwriters and the Underwriters' Counsel reasonable opportunity to participate fully in the preparation of any amendment to the Preliminary Prospectus, the Final Prospectus or Supplementary Material and to conduct all due diligence investigations which the Underwriters may reasonably require in order to fulfil their obligations as Underwriters and in order to enable the Underwriters to execute the certificate required to be executed by them in, or in connection with, such Supplementary Material; (g) all representations, warranties and covenants made by the Corporation to the Underwriters in this Agreement shall also be deemed to be made for the benefit of the Subscribers as if the Subscribers were also parties to this Agreement (it being agreed that the Underwriters are acting for and on behalf of the Subscribers for this purpose); (h) use its commercially reasonable efforts to maintain its status as a "reporting issuer" or the equivalent not in default in each of the Qualifying Provinces for a period of three years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares; (i) use its commercially reasonable efforts to maintain the listing of the Common Shares on the TSX- V or other recognized stock exchange for a period of three years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares; and (j) the Corporation will apply to list the Unit Shares issuable upon exercise or deemed exercise of the Special Warrants, the Warrant Shares issuable upon the exercise of the Warrants and the Compensation Warrant Shares issuable upon the exercise of the Compensation Warrants on the TSX-V and, subject to the satisfaction of minimum listing requirements of the TSX-V, use commercially reasonable efforts to have the Warrants issuable upon exercise or deemed exercise of the Special Warrants listed on the TSX-V following the earlier of the Qualification Date and the date that is four months and one day after the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (HIVE Digital Technologies Ltd.)
Prospectus Qualification. 6.1 The Corporation Company covenants and agrees with the Underwriters thatAgents that it shall:
(a) the Corporation shall elect and comply in all material respects with the Prospectus Review Procedures and in connection with such procedures shall use its reasonable commercial efforts to:
(i) efforts, as soon as reasonably practicable after the Closing DateDate and prior to the Penalty Deadline, but, in any event, no later than the Qualification Deadline, to:
(i) prepare and file a preliminary short form prospectus (the "Preliminary Prospectus") Qualifying Prospectus or Qualifying Supplement, as the case may be, and other documents required under Canadian the Applicable Securities Laws with the Securities Regulators of the Qualifying Provinces with the Commissions in order to qualify for the distribution the Underlying SecuritiesUnits, the Unit Shares, the Warrants and obtain a preliminary receipt from the Principal Regulator for Broker Warrants; and
(ii) otherwise fulfill and comply with all necessary requirements of the Preliminary Prospectus evidencing that a receipt has been deemed Applicable Securities Laws to enable the Units, the Unit Shares, the Warrants and the Broker Warrants to be issued for the Preliminary Prospectus (the "Preliminary Receipt") distributed in each of the Qualifying Provinces;
(ii) as soon as reasonably practicable after any comments of the Securities Regulators of the Qualifying Provinces in connection with the Preliminary Prospectus have been satisfied:
(A) prepare and file the Final Prospectus, (together with the Preliminary Prospectus, the "Prospectuses") and other documents, including the consents of qualified persons, required under the Canadian Securities Laws with the Securities Regulators of the Qualifying Provinces in order to qualify for distribution the Underlying Securities, and
(B) obtain the Final Receipt from the Principal Regulator;
(iiib) until the completion of the distribution of the Underlying SecuritiesUnits, the Unit Shares, the Warrants and the Broker Warrants, promptly take or cause to be taken all additional steps and proceedings that from time to time may be required under Canadian the Applicable Securities Laws of the Qualifying Provinces to continue to qualify the Underlying Securities Units, the Unit Shares, the Warrants and the Broker Warrants for distribution in the Qualifying Provinces or, in the event that the Underlying Securities Units, the Unit Shares, the Warrants or the Broker Warrants have, for any reason, ceased to so qualify, to use reasonable commercial efforts to again qualify the Underlying Securities Units, the Unit Shares, the Warrants or the Broker Warrants for distribution;distribution;
(ivc) prior to the filing of the Preliminary Qualifying Prospectus and or Qualifying Supplement, as the Final Prospectus, respectivelycase may be, and prior to the filing with any Securities Regulators Commission of any Supplementary Material, allow have allowed the Underwriters Agents and the Underwriters' Counsel Agents’ counsel reasonable opportunity to participate fully in the preparation of and to approve the form of such documents, documents (such approval which will not to be unreasonably withheld);
(vd) apply the net proceeds from the Offering for working capital and general corporate purposes;
(e) ensure that the descriptions of the Special Warrants, the Units, the Unit Shares, the Warrants, the Special Broker Warrants and Underlying Securities the Broker Warrants in the Prospectuses Qualifying Prospectus or the Qualifying Supplement, as the case may be, are true, complete and accurate descriptions of the rights, privileges, restrictions and conditions attaching to such securities; and
(vi) otherwise fulfill all reasonably necessary legal requirements to enable the Underlying Securities to be distributed in each of the Qualifying Provinces;
(bf) advise the Corporation shall Agents, promptly after receiving notice thereof, of the time when the Offering Documents have been filed and receipts, as applicable, therefor have been obtained, and will provide evidence reasonably satisfactory to the Agents of each such filing and copies of such receipts;
(g) deliver or cause to be delivered, at its own cost, delivered without charge to the Underwriters Agents and the Underwriters' Agents’ Counsel the documents set out below at the respective times indicated:
(i) as nearly as practicable with prior to the filing with Securities Regulators of the Qualifying Provinces Commissions of each of the Preliminary Qualifying Prospectus and or Qualifying Supplement (including the Final Base Shelf Prospectus), as the case may be, copies of the Preliminary Qualifying Prospectus and the Final Prospectusor Qualifying Supplement, signed by the Company as required by the Canadian Applicable Securities Laws of the Qualifying Provinces;
(ii) as soon as available, copies of any Supplementary Material, if required, signed as required by the Canadian Securities Laws of the Qualifying Provinces;
(iii) contemporaneously with with, or prior to the filing of the Final ProspectusQualifying Prospectus or Qualifying Supplement, or any Supplementary Material, as the case may be, a long-form "comfort letter" from the auditors of the Corporation, certificate dated the date of the Final Prospectussuch prospectus, addressed to the Underwriters Agents and satisfactory in form signed by the Chief Executive Officer and substance to the Underwriters and the Underwriters' Counsel, acting reasonably, containing statements and information Chief Financial Officer of the type ordinarily included Company certifying for and on behalf of the Company, and not in auditors' comfort letters to an agent in connection with securities offerings in Canada their personal capacities, after having made due inquiries, with respect to certain financial and accounting information relating to the Corporation in the Prospectuses which comfort letter shall be based on the auditors review having a cut-off date of not more than two Business Days prior to the date of the Final Prospectus;
(iv) as soon as practicable after the filing of the Prospectuses, commercial copies of the Prospectuses and any Supplementary Material in such numbers and delivered to such cities as the Underwriters may reasonably request by written instructions to the Corporation, or the printer of the Corporation, provided no later than the time when the Corporation authorizes the printing of the commercial copies of the Preliminary Prospectus and the Final Prospectus, respectively; and
(v) on the Qualification Date, a certificate of the Corporation dated the Qualification Date, addressed to the Underwriters and signed on the Corporation's behalf by its Chief Executive Officer, Chief Financial Officer or such other officer or director of the Corporation satisfactory to the Underwriters, acting reasonably, certifying thatfollowing matters:
(A) the Corporation has materially Company having complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with or and satisfied at or prior to the Qualification Date,date of the Qualifying Prospectus or Qualifying Supplement or any Supplementary Material, as the case may be;
(B) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Company or prohibiting the issue of the Units, the Unit Shares, the Warrants, the Warrant Shares or the Broker Warrants or any of the Company’s issued securities having been issued and no proceeding for such purpose being pending or, to the knowledge of such officers, threatened;
(C) the representations and warranties of the Corporation Company contained in this Agreement are and in any certificates of the Company delivered pursuant to or in connection with this Agreement being true and correct in all material respects as at the Qualification Datedate of the Qualifying Prospectus or Qualifying Supplement, or any Supplementary Material, as the case may be, with the same force and effect as if made on and as at the date of the Qualifying Prospectus or Qualifying Supplement, or any Supplementary Material, as the case may be, after giving effect to the transactions contemplated by this Agreement;
(CD) the Due Diligence Session Responses provided upon receipt by the Corporation in respect Company of the Due Diligence Session(s) held in connection with Receipt or the filing of the Final Prospectus are true and correct and would not be different in any material respect if Qualifying Supplement, as the Due Diligence Session were held immediately prior to case may be, the Qualification Date,
(D) the Corporation Company has made and/or obtained on or prior to the Qualification Datedate of the Qualifying Prospectus or Qualifying Supplement, or any Supplementary Material, as the case may be, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any applicable agreement or document to which the Corporation Company is a party or by which it is bound, required for the distribution of the Underlying Securities (subject to completion of filings with certain regulatory authorities following Units, the Qualification DateUnit Shares, as applicable)the Warrants, and
(E) no order, ruling or determination having the effect of suspending the distribution of the Underlying Securities or cease trading of the Common Shares (including the Warrant Shares and the Compensation Warrant Broker Warrants;
(E) the Qualifying Prospectus or Qualifying Supplement, as the case may be, is true and correct in all material respects and contains no misrepresentation, constitutes full, true and plain disclosure of all material facts relating to the Special Warrants, the Units, the Unit Shares) , the Warrants, the Special Broker Warrants and the Broker Warrants and to the Company and its Subsidiaries considered as a whole, and does not contain an untrue statement of a material fact or any other securities omit to state a material fact necessary to make the statements therein, in light of the Corporation has circumstances in which they were made, not misleading; and
(F) there having been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted Material Adverse Change since the Closing Time;
(iv) contemporaneously with, or are pending or, prior to the knowledge filing of the Qualifying Prospectus or Qualifying Supplement, as the case may be, confirmation from the Company that is has made such filings as are necessary to list the and post for trading of the Unit Shares and Warrant Shares on the Exchange, subject only to satisfaction by the Company of standard listing conditions;
(v) contemporaneously with, or prior to the filing of the Qualifying Prospectus or Qualifying Supplement, as the case may be, a “comfort letter” from the Company’s auditors, dated the date of the Qualifying Prospectus or Qualifying Supplement, as the case may be, addressed to the Agents and satisfactory in form and substance to the Agents and the Agents’ counsel, acting reasonably, containing statements and information of the type ordinarily included in auditors’ comfort letters to an agent in connection with securities offerings in Canada with respect to certain financial and accounting information relating to the Company in the Qualifying Prospectus or Qualifying Supplement, as the case may be, which comfort letter shall be based on the Company’s auditors review having a cut-off date of not more than two Business days prior to the date of the Qualifying Prospectus or Qualifying Supplement, as the case may be;
(vi) as soon as possible after the filing of the Qualifying Prospectus or Qualifying Supplement, as the case may be, without charge, commercial copies of the Qualifying Prospectus or Qualifying Supplement, as the case may be, and any Supplementary Material in such numbers and in such cities as the Agents may reasonably request by written instructions to the Company, or the printer thereof, given no later than the time when the Company authorizes the printing of the commercial copies of such officer documents; and
(vii) on the Automatic Exercise Date, a favourable legal opinion of the CorporationCompany’s Counsel or other local counsel acceptable to the Agents acting reasonably, contemplated addressed to the Agents, in form and substance reasonably satisfactory to the Agents and the Agents’ counsel, acting reasonably, with respect to the following matters relating to the filing of the Qualifying Prospectus or threatened under any Canadian Securities Laws or by any other regulatory authority.Qualifying Supplement, as the case may be, and all such opinions may be subject to customary assumptions, reliances and qualifications;
(ch) each delivery of the Preliminary ProspectusQualifying Prospectus or Qualifying Supplement, as the Final Prospectus case may be, or any Supplementary Material, as applicable, Material pursuant to subparagraph (b) hereof shall constitute a representation and warranty to the Underwriters Agents by the Corporation Company (and the Corporation Company hereby acknowledges that the Underwriters Agents are relying on such representations and warranties in entering into this agreement) that:that:
(i) the Preliminary ProspectusQualifying Prospectus or Qualifying Supplement, Final Prospectus as the case may be, or any Supplementary Material, as applicable:
(A) is, are at the respective date dates of such documentdocuments, true and correct in all material respects,;
(B) contain no misrepresentation, ; and
(C) contain contain, in all material respects, full, true and plain disclosure of all material facts relating to the Corporation Company and the Underlying Securities as Units, Unit Shares, the Warrants, the Warrant Shares and the Broker Warrants required under Canadian Applicable Securities Laws of the Qualifying Provinces, other than any information or statements relating solely to the Agents and furnished in writing to the Company by the Agents expressly for inclusion in the Qualifying Prospectus or Qualifying Supplement, as the case may be, or any Supplementary Material, as applicable, and except any information and statements which are modified or superseded by information or statements contained in the Qualifying Prospectus or Qualifying Supplement, as the case may be, or any Supplementary Material, as applicable;
(dii) until the Qualifying Prospectus or Qualifying Supplement, as the case may be, or any Supplementary Material, as applicable complies in all material respects with the Applicable Securities Laws of the Qualifying Provinces; and
(iii) there has been no material change (actual, proposed or prospective, whether financial or otherwise) from the date of the Qualifying Prospectus or Qualifying Supplement, as the case may be, or any Supplementary Material, as applicable, to the time of delivery of such respective document of the Company and its Subsidiaries, taken as a whole;
(i) use its commercially reasonable efforts to maintain its status as a “reporting issuer” or the equivalent not in default in each of the Qualifying Provinces for a period of two years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares;
(j) use its commercially reasonable efforts to maintain the listing of the Common Shares on the Exchange or other recognized stock exchange for a period of two years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares;
(k) the Company will apply to list the Unit Shares issuable upon exercise or deemed exercise of the Special Warrants and Broker Warrants, and the Warrant Shares issuable upon the exercise of the Warrants and the Broker Warrants on the Exchange;
(l) during the period commencing with the date hereof and ending on the completion of the distribution of the Underlying SecuritiesUnits, the Corporation Unit Shares, the Warrants and the Broker Warrants, the Company will promptly inform the Underwriters of:
(i) any request of any relevant Securities Regulator for any amendment provide to the Preliminary ProspectusAgents, for review by the Final Prospectus Agents and the Agents’ counsel, prior to filing or issuance of the same, any proposed public disclosure document, including without limitation, any financial statements of the Company, report to shareholders, information circular or any other part press release or material change report, subject to the Company’s obligations under Applicable Securities Laws to make timely disclosure of material information, and the Agents agree to keep such information confidential until it is disseminated into the marketplace, and any press release issued by the Company concerning the Offering shall comply with Rule 135e under the U.S. Securities Act and shall be marked, at the top of the Public Record or for any additional informationpress release, as follows: “NOT FOR DISTRIBUTION TO U.S. NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES”;
(iim) during the receipt by period commencing with the Corporation of any communication from any relevant Securities Regulator, the TSX-V or any other competent authority relating to any part of the Public Record or the distribution of the Special Warrants, the Underlying Securities, the Warrant Shares, the Compensation Warrants or the Compensation Warrant Shares; and
(iii) the issuance by relevant Securities Regulator, the TSX-V or by any other competent authority of any order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose;
(e) until date hereof and ending on the completion of the distribution of the Underlying SecuritiesUnits, the Corporation Unit Shares, the Warrants and the Broker Warrants, the Company will promptly inform the Underwriters of the full particulars Agents of:
(i) any material change (actual, anticipated, contemplated or threatened) in the businessBusiness, affairs, operations, capital or condition (financial or otherwise) of the Corporation Company or its properties or assets;, including the Business Assets; and
(ii) any material fact which has arisen or has been discovered and is required to be stated in the Preliminary ProspectusDisclosure Documents, the Final Qualifying Prospectus or the Qualifying Supplement, as the case may be, or any Supplementary Material or which would have been required to have been stated in the Preliminary ProspectusDisclosure Documents, the Final Qualifying Prospectus or the Qualifying Supplement, as the case may be, or any Supplementary Material had the fact arisen or been discovered on, or prior to, the date of such document; and
(iii) any change in any material fact (which for the purposes of this Agreement shall be deemed to include the disclosure of any previously undisclosed material fact) contained in the Public RecordDisclosure Documents, the Preliminary ProspectusQualifying Prospectus or the Qualifying Supplement, as the Final Prospectus case may be, or any Supplementary Material which change is, or may be, of such a nature as to render any statement in the Public RecordDisclosure Documents, the Preliminary ProspectusQualifying Prospectus or the Qualifying Supplement, as the Final Prospectus case may be, or any Supplementary Material misleading or untrue in any material respect or which would result in a misrepresentation in the Public RecordDisclosure Documents, the Preliminary ProspectusQualifying Prospectus or the Qualifying Supplement, as the Final Prospectus case may be, or any Supplementary Material or which would result in the Public RecordDisclosure Documents, the Preliminary ProspectusQualifying Prospectus or the Qualifying Supplement, as the Final Prospectus case may be, or any Supplementary Material not complying with Canadian Securities Laws, provided that if the Corporation Company is uncertain as to whether a material change, change, occurrence or event of the nature referred to in this Section 6(esubparagraph 6.1(m)(iii) has occurred, the Corporation Company shall promptly inform the Underwriters Agents of the full particulars of the occurrence giving rise to the uncertainty and shall consult with the Underwriters Agents as to whether the occurrence is of such a nature;
(fn) during the period commencing with the date hereof and ending on the completion of the distribution of the Units, the Unit Shares, the Warrants and the Broker Warrants, the Company will promptly inform the Agents of:
(i) any request of the Commissions for any amendment to the Qualifying Prospectus, Qualifying Supplement or any part of the Disclosure Documents or for any additional information;
(ii) the Corporation receipt by the Company of any communication from any Commission or similar regulatory authority, the Exchange, or any other competent authority relating to any part of the Disclosure Documents or the distribution of the Special Warrants, the Units, the Unit Shares, the Warrants, the Special Broker Warrants and the Broker Warrants; and
(iii) the issuance by any Commission or similar regulatory authority, the Exchange or by any other competent authority, of any order to cease or suspend trading of any securities of the Company or of the institution or threat of institution of any proceedings for that purpose;
(o) the Company will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Underwriters Agents and the Underwriters' CounselAgents’ counsel, with Canadian Applicable Securities Laws with respect to any material change or change, occurrence or event of the nature referred to in Sections 6(dsubparagraphs 6.1(l) and 6(e6.1(m) and the Corporation Company will prepare and file promptly at the Underwriters' Agents’ request, acting reasonably, any amendment to the Preliminary Prospectus, the Final Prospectus or Supplementary Material as may be required under Canadian Securities Laws of the Qualifying Provinces; provided, however, that the Corporation shall have allowed the Underwriters and the Underwriters' Counsel reasonable opportunity to participate fully in the preparation of any amendment to the Preliminary Prospectus, the Final Prospectus or Supplementary Material and to conduct all due diligence investigations which the Underwriters may reasonably require in order to fulfil their obligations as Underwriters and in order to enable the Underwriters to execute the certificate required to be executed by them in, or in connection with, such Supplementary Material;
(g) all representations, warranties and covenants made by the Corporation to the Underwriters in this Agreement shall also be deemed to be made for the benefit of the Subscribers as if the Subscribers were also parties to this Agreement (it being agreed that the Underwriters are acting for and on behalf of the Subscribers for this purpose);
(h) use its commercially reasonable efforts to maintain its status as a "reporting issuer" or the equivalent not in default in each of the Qualifying Provinces for a period of three years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares;
(i) use its commercially reasonable efforts to maintain the listing of the Common Shares on the TSX- V or other recognized stock exchange for a period of three years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares; and
(j) the Corporation will apply to list the Unit Shares issuable upon exercise or deemed exercise of the Special Warrants, the Warrant Shares issuable upon the exercise of the Warrants and the Compensation Warrant Shares issuable upon the exercise of the Compensation Warrants on the TSX-V and, subject to the satisfaction of minimum listing requirements of the TSX-V, use commercially reasonable efforts to have the Warrants issuable upon exercise or deemed exercise of the Special Warrants listed on the TSX-V following the earlier of the Qualification Date and the date that is four months and one day after the Closing Date.any
Appears in 1 contract
Sources: Agency Agreement
Prospectus Qualification. The Corporation covenants with the Underwriters that:
(a) the Corporation shall elect and comply in all material respects with the Prospectus Review Procedures and in connection with such procedures shall use reasonable commercial efforts to:
(i) as soon as reasonably practicable after the Closing Date, prepare and file a preliminary short form prospectus (the "Preliminary Prospectus") A&R Base Shelf Prospectus and other documents required under Canadian Securities Laws with the Securities Regulators of the Qualifying Provinces in order to qualify for distribution the Underlying Securities, and obtain a preliminary final receipt from the Principal Regulator for the Preliminary A&R Base Shelf Prospectus evidencing that a receipt has been deemed to be issued for the Preliminary A&R Base Shelf Prospectus (the "Preliminary Final Receipt") in each of the Qualifying Provinces;
(ii) as soon as reasonably practicable after any comments of the Final Receipt has been issued by the Securities Regulators of the Qualifying Provinces in connection with the Preliminary Prospectus have been satisfied:
(A) A&R Base Shelf Prospectus, prepare and file a prospectus supplement to the Final A&R Base Shelf Prospectus, (( the "Prospectus Supplement" and together with the Preliminary A&R Base Shelf Prospectus, the "Prospectuses") and other documents, including the consents of qualified personsconsents, required under the Canadian Securities Laws with the Securities Regulators of the Qualifying Provinces in order to qualify for distribution the Underlying Securities, and
(B) obtain the Final Receipt from the Principal Regulator;.
(iii) until the completion of the distribution of the Underlying Securities, promptly take or cause to be taken all additional steps and proceedings that from time to time may be required under Canadian Securities Laws to continue to qualify the Underlying Securities for distribution in the Qualifying Provinces or, in the event that the Underlying Securities have, for any reason, ceased to so qualify, to use reasonable commercial efforts to again qualify the Underlying Securities for distribution;
(iv) prior to the filing of the Preliminary A&R Base Shelf Prospectus and the Final ProspectusProspectus Supplement, respectively, and prior to the filing with any Securities Regulators of any Supplementary Material, allow the Underwriters and the Underwriters' Counsel to participate fully in the preparation of and to approve the form of such documents, such approval which will not be unreasonably withheld;
(v) ensure that the descriptions of the Special Warrants and Underlying Securities in the Prospectuses are true, complete and accurate descriptions of the rights, privileges, restrictions and conditions attaching to such securities; and
(vi) otherwise fulfill all reasonably necessary legal requirements to enable the Underlying Securities to be distributed in each of the Qualifying Provinces;
(b) the Corporation shall deliver or cause to be delivered, at its own cost, to the Underwriters and the Underwriters' Counsel the documents set out below at the respective times indicated:
(i) as nearly as practicable with the filing with Securities Regulators of the Qualifying Provinces of each of the Preliminary A&R Base Shelf Prospectus and the Final ProspectusProspectus Supplement, copies of the Preliminary A&R Base Shelf Prospectus and the Final ProspectusProspectus Supplement, signed as required by the Canadian Securities Laws of the Qualifying Provinces;
(ii) as soon as available, copies of any Supplementary Material, if required, signed as required by the Canadian Securities Laws of the Qualifying Provinces;
(iii) contemporaneously with or prior to the filing of the Final ProspectusProspectus Supplement, a long-form "comfort letter" from the auditors of the Corporation, dated the date of the Final ProspectusProspectus Supplement, addressed to the Underwriters and satisfactory in form and substance to the Underwriters and the Underwriters' Counsel, acting reasonably, containing statements and information of the type ordinarily included in auditors' comfort letters to an agent in connection with securities offerings in Canada with respect to certain financial and accounting information relating to the Corporation in the Prospectuses which comfort letter shall be based on the auditors review having a cut-off date of not more than two Business Days prior to the date of the Final ProspectusProspectus Supplement;
(iv) as soon as practicable after the filing of the ProspectusesProspectus Supplement, commercial copies of the Prospectuses and any Supplementary Material in such numbers and delivered to such cities as the Underwriters may reasonably request by written instructions to the Corporation, or the printer of the Corporation, provided no later than the time when the Corporation authorizes the printing of the commercial copies of the Preliminary Prospectus and the Final Prospectus, respectivelyProspectuses; and
(v) on the Qualification Date, a certificate of the Corporation dated the Qualification Date, addressed to the Underwriters and signed on the Corporation's behalf by its Chief Executive Officer, Chief Financial Officer or such other officer or director of the Corporation satisfactory to the Lead Underwriter, on behalf of the Underwriters, acting reasonably, certifying that:
(A) the Corporation has materially complied with and satisfied all terms and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Qualification Date,
(B) the representations and warranties of the Corporation contained in this Agreement are true and correct in all material respects at the Qualification Date;
(C) the Due Diligence Session Responses provided by the Corporation in respect of the Due Diligence Session(s) held in connection with the filing of the Final Prospectus Supplement are true and correct and would not be different in any material respect if the Due Diligence Session were held immediately prior to the Qualification Date,
(D) the Corporation has made and/or obtained on or prior to the Qualification Date, all necessary filings, approvals, consents and acceptances of applicable regulatory authorities and under any applicable agreement or document to which the Corporation is a party or by which it is bound, required for the distribution of the Underlying Securities (subject to completion of filings with certain regulatory authorities following the Qualification Date, as applicable), and
(E) no order, ruling or determination having the effect of suspending the distribution of the Underlying Securities or cease trading of the Common Shares (including the Warrant Shares and the Compensation Warrant Shares) or any other securities of the Corporation 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 officer of the Corporation, contemplated or threatened under any Canadian Securities Laws or by any other regulatory authority.
(c) each delivery of the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or any Supplementary Material, as applicable, shall constitute a representation and warranty to the Underwriters by the Corporation (and the Corporation hereby acknowledges that the Underwriters are relying on such representations and warranties in entering into this agreement) that:
(i) the Preliminary A&R Base Shelf Prospectus, Final Prospectus Supplement or any Supplementary Material, as applicable:
(A) is, at the respective date of such document, true and correct in all material respects,
(B) contain no misrepresentation, and
(C) contain full, true and plain disclosure of all material facts relating to the Corporation and the Underlying Securities as required under Canadian Securities Laws of the Qualifying Provinces;
(d) until the completion of the distribution of the Underlying Securities, the Corporation will promptly inform the Underwriters of:
(i) any request of any relevant Securities Regulator for any amendment to the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or any other part of the Public Record or for any additional information;
(ii) the receipt by the Corporation of any communication from any relevant Securities Regulator, the TSX-V or any other competent authority relating to any part of the Public Record or the distribution of the Special Warrants, Warrants or the Underlying Securities, the Warrant Shares, the Compensation Warrants or the Compensation Warrant Shares; and
(iii) the issuance by relevant Securities Regulator, the TSX-V or by any other competent authority of any order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose;
(e) until the completion of the distribution of the Underlying Securities, the Corporation will promptly inform the Underwriters of the full particulars of:
(i) any material change (actual, anticipated, contemplated or threatened) in the business, affairs, operations, capital or condition (financial or otherwise) of the Corporation or its properties or assets;
(ii) any material fact which has arisen or has been discovered and is required to be stated in the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or any Supplementary Material or which would have been required to have been stated in the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or any Supplementary Material had the fact arisen or been discovered on, or prior to, the date of such document; and
(iii) any change in any material fact (which for the purposes of this Agreement shall be deemed to include the disclosure of any previously undisclosed material fact) contained in the Public Record, the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or any Supplementary Material which change is, or may be, of such a nature as to render any statement in the Public Record, the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or any Supplementary Material misleading or untrue in any material respect or which would result in a misrepresentation in the Public Record, the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or any Supplementary Material or which would result in the Public Record, the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or any Supplementary Material not complying with Canadian Securities Laws, provided that if the Corporation is uncertain as to whether a material change, change, occurrence or event of the nature referred to in this Section 6(e) has occurred, the Corporation shall promptly inform the Underwriters of the full particulars of the occurrence giving rise to the uncertainty and shall consult with the Underwriters as to whether the occurrence is of such a nature;
(f) the Corporation will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Underwriters and the Underwriters' Counsel, with Canadian Securities Laws with respect to any material change or change, occurrence or event of the nature referred to in Sections 6(d) and 6(e) and the Corporation will prepare and file promptly at the Underwriters' request, acting reasonably, any amendment to the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or Supplementary Material as may be required under Canadian Securities Laws of the Qualifying Provinces; provided, however, that the Corporation shall have allowed the Underwriters and the Underwriters' Counsel reasonable opportunity to participate fully in the preparation of any amendment to the Preliminary A&R Base Shelf Prospectus, the Final Prospectus Supplement or Supplementary Material and to conduct all due diligence investigations which the Underwriters may reasonably require in order to fulfil their obligations as Underwriters and in order to enable the Underwriters to execute the certificate required to be executed by them in, or in connection with, such Supplementary Material;
(g) all representations, warranties and covenants made by the Corporation to the Underwriters in this Agreement shall also be deemed to be made for the benefit of the Subscribers as if the Subscribers were also parties to this Agreement (it being agreed that the Underwriters are acting for and on behalf of the Subscribers for this purpose);
(h) use its commercially reasonable efforts to maintain its status as a "reporting issuer" or the equivalent not in default in each of the Qualifying Provinces for a period of three years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares;
(i) use its commercially reasonable efforts to maintain the listing of the Common Shares on the TSX- V or other recognized stock exchange for a period of three years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares; and
(j) the Corporation will apply to list the Unit Shares issuable upon exercise or deemed exercise of the Special Warrants, the Warrants and Warrant Shares issuable upon the exercise of the Warrants and the Compensation Warrant Shares issuable upon the exercise of the Compensation Warrants on the TSX-V and, subject to the satisfaction of minimum listing requirements of the TSX-V, use commercially reasonable efforts to have the Warrants issuable upon exercise or deemed exercise of the Special Warrants listed on the TSX-V following the earlier of the Qualification Date and the date that is four months and one day after the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (HIVE Blockchain Technologies Ltd.)
Prospectus Qualification. 6.1 The Corporation Company covenants and agrees with the Underwriters thatAgents that it shall:
(a) the Corporation shall elect and comply in all material respects with the Prospectus Review Procedures and in connection with such procedures shall use its reasonable commercial efforts to:
(i) efforts, as soon as reasonably practicable after the Initial Closing Date, to:
(i) prepare and file a preliminary short form prospectus (the "Preliminary Prospectus") Prospectus and other documents required under Canadian the Applicable Securities Laws with the Securities Regulators of the Qualifying Provinces in order to qualify for distribution with the Underlying Securities, Commissions and obtain a preliminary receipt from designate the Principal Regulator for Alberta Securities Commission as the Preliminary Prospectus evidencing that a receipt has been deemed to be issued for the Preliminary Prospectus (the "Preliminary Receipt") in each of the Qualifying Provincesprincipal regulator;
(ii) as soon as reasonably practicable after obtaining the Preliminary Receipt, resolve any comments of with respect to the Securities Regulators of Preliminary Prospectus received by the Commissions in the Qualifying Provinces in connection with the Preliminary Prospectus have been satisfied:
(A) and prepare and file the Final Prospectus, (together with the Preliminary Prospectus, the "Prospectuses") Prospectus and other documents, including the consents of qualified persons, documents required under the Canadian Applicable Securities Laws with the Securities Regulators of the Qualifying Provinces in order to qualify for distribution with the Underlying Securities, and
(B) obtain the Final Receipt from the Principal RegulatorCommissions;
(iii) otherwise fulfill and comply with all necessary requirements of the Applicable Securities Laws to enable the Underlying Shares and Warrants to be distributed in each of the Qualifying Provinces;
(iv) until the completion of the distribution of the Underlying SecuritiesSpecial Warrants and the Broker Warrants, promptly take or cause to be taken all additional steps and proceedings that from time to time may be required under Canadian the Applicable Securities Laws of the Qualifying Provinces to continue to qualify the Underlying Securities Shares and Warrants for distribution in the Qualifying Provinces or, in the event that the Underlying Securities Shares and Warrants have, for any reason, ceased to so qualify, to use reasonable commercial efforts to again qualify the Underlying Securities Shares and Warrants for distribution;; and
(ivv) prior to the filing of the Preliminary Prospectus and the Final Prospectus, respectively, Prospectuses and prior to the filing with any Securities Regulators Commission of any Supplementary Material, allow have allowed the Underwriters Agents and the Underwriters' Counsel Agents’ counsel reasonable opportunity to participate fully in the preparation of and to approve the form of such documents, documents (such approval which will not to be unreasonably withheld;
(v) ensure that the descriptions of the Special Warrants and Underlying Securities in the Prospectuses are true, complete and accurate descriptions of the rights, privileges, restrictions and conditions attaching to such securities; and
(vi) otherwise fulfill all reasonably necessary legal requirements to enable the Underlying Securities to be distributed in each of the Qualifying Provinces);
(b) apply the Corporation shall net proceeds from the Offering to expand the Company’s existing operations in Alberta, strategic acquisition opportunities, and for general working capital purposes;
(c) deliver or cause to be delivered, at its own cost, delivered without charge to the Underwriters Agents and the Underwriters' Agents’ Counsel the documents set out below at the respective times indicated:
(i) as nearly as practicable with prior to the filing with Securities Regulators of the Qualifying Provinces Commissions of each of the Preliminary Prospectus and the Final Prospectus, copies of the Preliminary Prospectus and the Final Prospectus, signed by the Company as required by the Canadian Applicable Securities Laws of the Qualifying Provinces;
(ii) contemporaneously with, or prior to the filing of the Final Prospectus or any Supplementary Material in respect of the Final Prospectus, a certificate dated the date of the Final Prospectus, addressed to the Agents and signed by the Chief Executive Officer of the Company or another officer of the Company acceptable to the Agents, certifying for and on behalf of the Company, and not in their personal capacities, after having made due inquiries, with respect to the following matters:
(A) the Company having complied with all of the covenants and satisfied all of the terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the date of the Final Prospectus;
(B) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Company or prohibiting the issue of the Underlying Shares or Warrants or any of the Company’s issued securities having been issued and no proceeding for such purpose being pending or, to the knowledge of such officers, threatened;
(C) the representations and warranties of the Company contained in this agreement and in any certificates of the Company delivered pursuant to or in connection with this Agreement being true and correct as soon as available, copies at the date of any the Final Prospectus or Supplementary Material, with the same force and effect as if required, signed made on and as required by at the Canadian Securities Laws date of the Qualifying ProvincesFinal Prospectus or Supplementary Material, as the case may be, after giving effect to the transactions contemplated by this agreement; and
(D) there having been no Material Adverse Change since the Closing Time;
(iii) contemporaneously with with, or prior to the filing of the Final Prospectus, a long-form "“comfort letter" ” from the auditors of the CorporationCompany’s auditors, dated the date of the Final Prospectus, addressed to the Underwriters Agents and satisfactory in form and substance to the Underwriters Agents and the Underwriters' CounselAgents’ counsel, acting reasonably, containing statements and information of the type ordinarily included in auditors' ’ comfort letters to an agent in connection with securities offerings in Canada with respect to certain financial and accounting information relating to the Corporation Company in the Prospectuses Final Prospectus which comfort letter shall be based on the Company’s auditors review having a cut-off date of not more than two Business Days days prior to the date of the Final Prospectus;
(iv) as soon as practicable possible after the filing of the ProspectusesFinal Prospectus, without charge, commercial copies of the Prospectuses Final Prospectus and any Supplementary Material in such numbers and delivered to in such cities as the Underwriters Agents may reasonably request by written instructions to the CorporationCompany, or the printer of the Corporationthereof, provided given no later than the time when the Corporation Company authorizes the printing of the commercial copies of the Preliminary Prospectus and the Final Prospectus, respectively; andsuch documents;
(v) on the Qualification Date, a certificate favourable legal opinion of the Corporation dated Company’s Counsel or other local counsel acceptable to the Qualification DateAgents acting reasonably, addressed to the Underwriters Agents, in form and signed on the Corporation's behalf by its Chief Executive Officer, Chief Financial Officer or such other officer or director of the Corporation substance reasonably satisfactory to the UnderwritersAgents and the Agents’ counsel, acting reasonably, certifying thatwith respect to the following matters relating to the filing of the Final Prospectus and all such opinions may be subject to customary assumptions, reliances and qualifications:
(A) the Corporation Company has materially complied the necessary corporate power and authority to execute and deliver the Prospectuses and all necessary corporate action has been taken by the Company to authorize the execution and delivery by it of the Prospectuses and the filing thereof, as the case may be, in each of the Qualifying Provinces in accordance with and satisfied all terms and conditions Applicable Securities Laws of this Agreement on its part to be complied with or satisfied at or prior to the Qualification Date,Qualifying Provinces;
(B) the representations and warranties attributes of the Corporation contained in this Agreement are true and correct Underlying Shares conform in all material respects at with the Qualification Datedescription thereof contained in the Prospectuses;
(C) the Due Diligence Session Responses provided by statements under the Corporation headings “Eligibility for Investment” and “Certain Canadian Federal Income Tax Considerations” in respect of the Due Diligence Session(s) held in connection with the filing of the Final Prospectus are true and correct and would not be different in any material respect if the Due Diligence Session were held immediately prior to the Qualification Date,correct;
(D) the Corporation has made and/or obtained on or prior to the Qualification Dateall necessary documents have been filed, all necessary filings, approvals, consents proceedings have been taken and acceptances of applicable regulatory authorities and all legal requirements have been fulfilled as required under any applicable agreement or document to which the Corporation is a party or by which it is bound, required for the distribution Applicable Securities Laws of the Qualifying Provinces in order to qualify the Underlying Shares and Warrants for distribution in each of the Qualifying Provinces by or through investment dealers and brokers duly registered under the applicable laws of such Provinces who have complied with the relevant provisions of Applicable Securities (subject to completion Laws of filings with certain regulatory authorities following the Qualification Date, as applicable), Qualifying Provinces; and
(E) no orderthe Common Shares, ruling or determination having the effect of suspending the distribution of including the Underlying Securities or cease trading of the Common Shares (including the Warrant Shares and the Compensation Warrant Shares) or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose , have been instituted conditionally listed or are pending or, to approved for listing on the knowledge of such officer of the Corporation, contemplated or threatened under any Canadian Securities Laws or by any other regulatory authority.Exchange;
(cd) each delivery of the Preliminary Prospectus, the Final Prospectus or any Supplementary Material, as applicable, Material pursuant to subparagraph (b) hereof shall constitute a representation and warranty to the Underwriters Agents by the Corporation Company (and the Corporation Company hereby acknowledges that the Underwriters Agents are relying on such representations and warranties in entering into this agreement) that:
(i) the Preliminary Prospectus, the Final Prospectus or any Supplementary Material, as applicable:
(A) is, are at the respective date dates of such documentdocuments, true and correct in all material respects,;
(B) contain no misrepresentation, ; and
(C) contain contain, in all material respects, full, true and plain disclosure of all material facts relating to the Corporation Company and the Underlying Securities as Shares required under Canadian Applicable Securities Laws of the Qualifying Provinces;
(d) until , other than any information or statements relating solely to the completion of Agents and furnished in writing to the distribution of Company by the Underlying Securities, the Corporation will promptly inform the Underwriters of:
(i) any request of any relevant Securities Regulator Agents expressly for any amendment to inclusion in the Preliminary Prospectus, the Final Prospectus or any other part of Supplementary Material, as the Public Record case may be, and except any information and statements which are modified or for superseded by information or statements contained in the Preliminary Prospectus, the Final Prospectus or any additional informationSupplementary Material, as the case may be;
(ii) the receipt by the Corporation of any communication from any relevant Securities RegulatorPreliminary Prospectus, the TSX-V Final Prospectus or any other competent authority relating to any part Supplementary Material, as applicable, complies in all material respects with the Applicable Securities Laws of the Public Record or the distribution of the Special Warrants, the Underlying Securities, the Warrant Shares, the Compensation Warrants or the Compensation Warrant SharesQualifying Provinces; and
(iii) except as has been disclosed in the issuance by relevant Securities RegulatorDisclosure Documents, there has been no material change (actual, proposed or prospective, whether financial or otherwise) from the date of the Preliminary Prospectus, the TSX-V or by Final Prospectus and any other competent authority Supplementary Material to the time of any order to cease or suspend trading delivery of any securities such respective document of the Corporation or of the institution or threat of institution of any proceedings for that purposeCompany and its Subsidiaries, taken as a whole;
(e) until the completion it will use its commercially reasonable efforts to obtain all necessary approvals of the distribution Exchange required for the listing of the Common Shares (including the Underlying SecuritiesShares) and shall comply with all requirements of the Exchange in the order to list the Common Shares on the Exchange;
(f) during the period commencing with the date hereof and ending on the Qualification Deadline, the Corporation Company will promptly provide to the Agents, for review by the Agents and the Agents’ counsel, prior to filing or issuance of the same, any proposed public disclosure document, including without limitation, any financial statements of the Company, report to shareholders, information circular or any press release or material change report, subject to the Company’s obligations under Applicable Securities Laws to make timely disclosure of material information, and the Agents agree to keep such information confidential until it is disseminated into the marketplace, and any press release issued by the Company concerning the offering of the Special Warrants, Warrants or Underlying Shares shall comply with Rule 135e under the U.S. Securities Act and shall be marked, at the top of the press release, as follows: “NOT FOR DISTRIBUTION TO U.S. NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES”;
(g) during the period commencing with the date hereof and ending on the Qualification Deadline, the Company will promptly inform the Underwriters Agents of the full particulars of:
(i) any material change (actual, anticipated, contemplated anticipated or threatened) in the business, affairs, operations, capital or condition (financial or otherwise) of the Corporation or Company and its properties or assetsSubsidiaries, taken as a whole;
(ii) any material fact which has arisen or has been discovered and is required to be stated in the Preliminary Prospectus, the Final Prospectus or any Supplementary Material or which would have been required to have been stated in the Preliminary Prospectus, the Final Prospectus or any Supplementary Material had the fact arisen or been discovered on, or prior to, the date of such document; and
(iii) any change in any material fact (which for the purposes of this Agreement shall be deemed contained or referred to include the disclosure of any previously undisclosed material fact) contained in the Public RecordDisclosure Documents; and
(iii) the occurrence of a material fact or event, the Preliminary Prospectuswhich, the Final Prospectus or in any Supplementary Material which change such case, is, or may be, of such a nature as to to: (A) render any statement in portion of the Public RecordDisclosure Documents untrue, the Preliminary Prospectus, the Final Prospectus false or any Supplementary Material misleading or untrue in any material respect or which would respect; (B) result in a misrepresentation in the Public Record, the Preliminary Prospectus, the Final Prospectus Disclosure Documents; or any Supplementary Material or which would (C) result in the Public Record, the Preliminary Prospectus, the Final Prospectus or any Supplementary Material Disclosure Documents not complying in a material respect with Canadian the Applicable Securities Laws, ; provided that if the Corporation Company is uncertain as to whether a material change, change, occurrence or event of the nature referred to in this Section 6(esubparagraph 6.1(g)(iii) has occurred, the Corporation Company shall promptly inform the Underwriters Agents of the full particulars of the occurrence giving rise to the uncertainty and shall consult with the Underwriters Agents as to whether the occurrence is of such a nature;
(fh) during the period commencing with the date hereof and ending on the Qualification Deadline, the Company will promptly inform the Agents of:
(i) any request of the Commissions for any amendment to the Preliminary Prospectus or the Final Prospectus or for any additional information;
(ii) the Corporation receipt by the Company of any communication from any Commission or similar regulatory authority, the Exchange, or any other competent authority relating to any part of the Offering Documents; and
(iii) the issuance by any Commission or similar regulatory authority, the Exchange or by any other competent authority, of any order to cease or suspend trading of any securities of the Company or of the institution or threat of institution of any proceedings for that purpose;
(i) the Company will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Underwriters Agents and the Underwriters' CounselAgents’ counsel, with Canadian Applicable Securities Laws with respect to any material change or change, occurrence or event of the nature referred to in Sections 6(dsubparagraphs 6.1(g)(iii) and 6(e6.1(h) and the Corporation Company will prepare and file promptly at the Underwriters' Agents’ request, acting reasonably, any amendment to the Preliminary Prospectus, the Final Prospectus or Supplementary Material as may be required under Canadian Applicable Securities Laws of the Qualifying Provinces; provided, however, provided that the Corporation Company shall have allowed the Underwriters Agents and the Underwriters' Counsel Agents’ counsel reasonable opportunity to participate fully in the preparation of any amendment to the Preliminary Prospectus, the Final Prospectus or Supplementary Material and to conduct all due diligence investigations which the Underwriters Agents may reasonably require in order to fulfil their obligations as Underwriters Agents and in order to enable the Underwriters Agents to execute the certificate required to be executed by them in, or in connection with, such Supplementary Material;
(gj) the Company will duly, faithfully and punctually perform all the obligations to be performed by it and comply with its covenants and agreements hereunder and under the Subscription Agreements;
(k) all representations, warranties and covenants in sections 4, 6 and 8 in this Agreement made by the Corporation Company to the Underwriters in this Agreement Agents shall also be deemed to be made for the benefit of the Subscribers as if the Subscribers were also parties to this Agreement hereto (it being agreed that the Underwriters Agents are acting for and on behalf of the Subscribers for this purpose);
(h) use its commercially reasonable efforts to maintain its status as a "reporting issuer" or the equivalent not in default in each of the Qualifying Provinces for a period of three years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares;
(i) use its commercially reasonable efforts to maintain the listing of the Common Shares on the TSX- V or other recognized stock exchange for a period of three years from the Closing Date, other than in connection with a merger, amalgamation, arrangement, takeover bid, going private transaction or other similar transaction involving the purchase or sale of all of the outstanding Common Shares; and
(j) the Corporation will apply to list the Unit Shares issuable upon exercise or deemed exercise of the Special Warrants, the Warrant Shares issuable upon the exercise of the Warrants and the Compensation Warrant Shares issuable upon the exercise of the Compensation Warrants on the TSX-V and, subject to the satisfaction of minimum listing requirements of the TSX-V, use commercially reasonable efforts to have the Warrants issuable upon exercise or deemed exercise of the Special Warrants listed on the TSX-V following the earlier of the Qualification Date and the date that is four months and one day after the Closing Date.
Appears in 1 contract
Sources: Agency Agreement