U.S. Law. (a) Representations of the Corporation Regarding U.S. Law The Corporation represents, warrants, covenants and agrees that: (i) the Corporation is, and at the Closing Date will be, a Foreign Private Issuer with no “substantial U.S. market interest” in any of its securities (as that term is defined in Regulation S); (ii) neither it nor any of its affiliates, nor any person acting on their behalf (other than the Underwriter, its respective affiliates or any person acting on their behalf, in respect of which no representation is made) has made or will make any Directed Selling Efforts in the United States or has taken or will take any action in violation of Regulation M under the United States Securities Exchange Act of 1934, as amended, (the “1934 Act”), or has taken or will take any action that would cause the exemption from registration under Rule 506 of Regulation D or Rule 903 of Regulation S to be unavailable for offers and sales of the Subscription Receipts pursuant to this Agreement; (iii) none of the Corporation, any of its affiliates or any person acting on its or their behalf (other than the Underwriter, the U.S. Affiliate, their respective affiliates or any person acting on their behalf, in respect of which no representation is made) has offered or will offer to sell, or has solicited or will solicit offers to buy, any of the Subscription Receipts in the United States by means of any form of general solicitation or general advertising, which includes any 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, or in any manner involving a public offering within the meaning of Section 4(2) of the U.S. Securities Act; (iv) the Corporation has not, for a period of six months prior to the commencement of the offering of Subscription Receipts, sold, offered for sale or solicited any offer to buy any of its securities and will not sell, offer for sale or solicit any offer to buy any of its securities, in a manner that would be integrated with the offer and sale of the Subscription Receipts and would cause the exemptions from registration set forth in Rule 506 of Regulation D to become unavailable with respect to the offer and sale of the Subscription Receipts in the United States or to or for the benefit or account of U.S. Persons; (v) neither the Corporation nor any of its predecessors or affiliates has been subject to any order, judgment, or decree of any court of competent jurisdiction temporarily, preliminarily or permanently enjoining such person for failure to comply with Rule 503 of Regulation D; (vi) the Corporation covenants and agrees with the Underwriter to execute or procure the execution of all documents and to use its commercially reasonable efforts to take or cause to be taken both before and after the Closing Date, all such steps as may be reasonably necessary or desirable to establish, to the satisfaction of counsel for the Underwriter and counsel for the Corporation, any and all legal requirements to enable the Underwriter to offer the Subscription Receipts for sale in the United States under Rule 506 of Regulation D in accordance with this Agreement; (vii) the Corporation covenants and agrees that in connection with the exercise or deemed exercise of the Subscription Receipts it will not pay or give, directly or indirectly, any commission or other remuneration for soliciting such exchange; and (viii) except with respect to offers or sales of Subscription Receipts to U.S. Accredited Investors in reliance upon an exemption from registration under Rule 506 of Regulation D, neither the Corporation nor any of its affiliates, nor any person acting on their behalf (other than the Underwriter, the U.S. Affiliate, their respective affiliates or any person acting on their behalf, in respect of which no representation is made), has made or will make: A. any offer to sell, or any solicitation of an offer to buy, any Subscription Receipts to or for the benefit or account of a U.S. Person, or a person in the United States; or B. any sale of Subscription Receipts unless, at the time the buy order was or will have been originated, the purchaser is: (1) outside the United States; or (2) the Corporation, its affiliates, and any person acting on their behalf reasonably believe that the purchaser is outside the United States. (b) Undertakings in Compliance with Regulation S Except as otherwise provided in this Section 10, the Underwriter agrees with the Corporation that with respect to each offer and sale of the Subscription Receipts they will offer the Subscription Receipts only in accordance with Rule 903 of Regulation S and accordingly neither the Underwriter, its affiliates, nor any person acting on their behalf has made or will make (except as permitted by Section 10): (i) any offer to sell, or any solicitation of an offer to buy, Subscription Receipts to any U.S. Person, to any person purchasing for the benefit or account of a U.S. Person, or any person in the United States; (ii) any sale of Subscription Receipts unless, at the time the buy order was or will have been originated the Purchaser is: A. outside the United States; or B. the Underwriter, their affiliates and any person acting on their behalf reasonably believe that the Purchaser is outside the United States; nor (iii) any Directed Selling Efforts in the United States with respect to the Subscription Receipts. (c) Offering by Underwriter in the United States The Underwriter acknowledge that the Subscription Receipts have not been registered under the U.S. Securities Act and may not be offered or sold, with respect to offers and sales to or for the benefit or account of U.S. Persons, except pursuant to Rule 506 of Regulation D. Accordingly, the Underwriter, on its own behalf and on behalf of its affiliates, represents, warrants and covenants to the Corporation that, with respect to each offer or sale of Subscription Receipts to or for the benefit or account of U.S. Persons, it has offered and sold, and will offer and sell, securities to Purchasers in the United States only in the following manner: (i) the Underwriter will offer the Subscription Receipts in the United States only through a broker dealer registered pursuant to Section 15(b) of the 1934 Act and in good standing with the National Association of Securities Dealers Inc. (a “U.S. Affiliate”), solely to U.S. Accredited Investors, and only in states of the United States where such broker-dealer is registered, or otherwise exempt from registration; (ii) 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 U.S. Securities Act has been or will be used by the Underwriter, the U.S. Affiliate, their affiliates or anyone acting on their behalf, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Subscription Receipts to U.S. Persons; (iii) any offer, sale or solicitation of an offer to buy Subscription Receipts that has been made or will be made to U.S. Persons or in the United States was or will be made only to U.S. Accredited Investors, and in transactions that are exempt from registration under applicable state securities laws and require no filings or actions pre-offer or pre-sale except as otherwise agreed by the Corporation; (iv) notwithstanding the wording of this Agreement, which contemplates the purchase of the Subscription Receipts by the Underwriter, all offers and sales of Subscription Receipts in the United States or to U.S. Persons will be made only to U.S. Accredited Investors who will purchase the Subscription Receipts directly from the Corporation on a “substituted purchaser” basis in compliance with Rule 506 of Regulation D; (v) the Underwriter has not entered and will not enter into any contractual arrangement with respect to the distribution of the Subscription Receipts, except with its affiliates, any selling group members or with the prior written consent of the Corporation. The Underwriter shall require each selling group member to agree in writing, to comply with, and shall use its best efforts to ensure that each selling group member complies with the same the provisions of this Section 10 as apply to such Underwriter as if such provisions applied to such selling group member; (vi) all offers of Subscription Receipts in the United States or to or for the benefit or account of a U.S. Person have been and will be made through U.S. Affiliate and all sales of the Subscription Receipts in the United States or to or for the benefit or account of a U.S. Person will be made by the Corporation to U.S. Accredited Investors designated by the U.S. Affiliate or by the Underwriter acting through U.S. Affiliate; (vii) immediately prior to soliciting any Purchaser that is in the United States or for the benefit or account of a U.S. Person, the Underwriter, the U.S. Affiliate, their respective affiliates, and any person acting on their behalf, had reasonable grounds to believe and did believe that each such Purchaser was a U.S. Accredited Investor, and at the time of completion of each sale to or for the benefit or account of a U.S. Person or a person in the United States, the Underwriter, the U.S. Affiliate, their respective affiliates, and any person acting on their behalf will have reasonable grounds to believe and will believe, that each Purchaser designated by such Underwriter or the U.S. Affiliate to purchase Subscription Receipts from the Corporation is a U.S. Accredited Investor; (viii) on the Closing Date, the Underwriter together with the U.S. Affiliate, will provide a certificate, substantially in the form of Schedule “C”, relating to the manner of the offer and sale of the Subscription Receipts in the United States and to or for the benefit or account of U.S. Persons, or a written confirmation that it did not sell any Subscription Receipts in the United States or to or for the benefit or account of U.S. Persons or arrange for any purchasers that are in the United States or are U.S. Persons; (ix) neither the Underwriter, the U.S. Affiliate, their respective affiliates, or any person acting on their behalf, 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 Subscription Receipts; (x) prior to completion of any sale of Subscription Receipts to a person in the United States or to a U.S. Person, the Underwriter shall cause each such Purchaser of Subscription Receipts to execute an agreement in the form agreed upon by the Underwriter and the Corporation; (xi) the Underwriter shall give the Corporation reasonable notice of the U.S. jurisdictions in which it proposes to offer and sell the Subscription Receipts, so as to assist the Corporation in satisfying its obligations and to permit the Corporation to timely submit any and all filings required of the U.S. Securities Act and applicable state laws; (xii) the Underwriter will not directly or indirectly, take any actions or conduct any activities which will cause the Corporation to cease to be a Foreign Private Issuer; and (xiii) the representations and warranties and covenants of the Underwriter contained in this Section 10 shall be true and correct as of the Closing, with the same force and effect as if then made by the Underwriter.
Appears in 1 contract
U.S. Law. (a) Representations of the Corporation Regarding U.S. Law 6.1 The Corporation Issuer represents, warrants, covenants and agrees that:
(ia) it is not, as a result of the Corporation issale of the Securities will not be, and agrees to use its best efforts not to become, at any time prior to the expiration of three years after the Closing Date will beDay, a Foreign Private Issuer with no an “substantial U.S. market interestinvestment company” in any of its securities (as that term is defined in Regulation S)the United States Investment Company Act of 1940, as amended;
(iib) during the period in which the Shares are offered for sale or during the term of the Agent’s Warrants, neither it nor any of its affiliates, nor any person acting on their behalf (other than the UnderwriterAgent, its respective affiliates or any person acting on their behalf, in respect of which no representation is made) has made or will make any Directed Selling Efforts in the United States or has taken or will take any action in violation of Regulation M under the United States Securities Exchange Act of 1934, as amended, (the “1934 Act”), with respect to distributions under Regulation S, or has taken or will take any action that would cause the exemption from registration under Rule 506 of Regulation D or Rule 903 of Regulation S to be unavailable for offers and sales of the Subscription Receipts Securities, pursuant to this Agreement;
(iiic) none of the CorporationIssuer, any of its affiliates or any person acting on its or their behalf (other than the UnderwriterAgent, the U.S. Affiliate, their respective affiliates or any person acting on their behalf, in respect of which no representation is made) has offered or will offer to sell, or has solicited or will solicit offers to buy, any of the Subscription Receipts Securities in the United States by means of any form of general solicitation or general advertising, which includes any 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, or in any manner involving a public offering within the meaning of Section 4(2) of the U.S. Securities Act;
(ivd) the Corporation Issuer has not, for a period of six months prior to the commencement of the offering of Subscription ReceiptsSecurities, sold, offered for sale or solicited any offer to buy any of its securities and will not sell, offer for sale or solicit any offer to buy any of its securities, in a manner that would be integrated with the offer and sale of the Subscription Receipts Securities and would cause the exemptions exemption from registration set forth in Rule 506 of Regulation D to become unavailable with respect to the offer and sale of the Subscription Receipts Shares in the United States or to or for the benefit or account of U.S. Persons;
(ve) neither the Corporation Issuer nor any of its predecessors or affiliates has been subject to any order, judgment, or decree of any court of competent jurisdiction temporarily, preliminarily or permanently enjoining such person for failure to comply with Rule 503 of Regulation D;
(vif) the Corporation Issuer covenants and agrees with the Underwriter Agent to execute or procure the execution of all documents and to use its commercially reasonable efforts to take or cause to be taken both before and after the Closing Dateeach Closing, all such steps as may be reasonably necessary or desirable to establish, to the reasonable satisfaction of counsel for the Underwriter Agent and counsel for the CorporationIssuer, any and all legal requirements to enable the Underwriter Agent to offer the Subscription Receipts Shares for sale in the United States under Rule 506 of Regulation D in accordance with this Agreement;
(vii) Agreement and the Corporation covenants and agrees that in connection with the exercise or deemed exercise of the Subscription Receipts it will not pay or give, directly or indirectly, any commission or other remuneration for soliciting such exchangeapplicable exemption from registration under applicable state securities laws; and
(viiig) except with respect to offers or sales of Subscription Receipts Shares to U.S. Accredited Investors in reliance upon an exemption from registration under Rule 506 of Regulation D, neither the Corporation Issuer nor any of its affiliates, nor any person acting on their behalf (other than the UnderwriterAgent, the U.S. Affiliate, their respective affiliates or any person acting on their behalf, in respect of which no representation is made), has made in a transaction that would be integrated with the offer and sale of the Securities or will make:
A. (i) any offer to sell, or any solicitation of an offer to buy, any Subscription Receipts Shares to or for the benefit or account of a U.S. Person, or a person in the United States; or
B. (ii) any sale of Subscription Receipts Shares unless, at the time the buy order was or will have been originated, the purchaser is:
(1A) outside the United States; or
(2B) the CorporationIssuer, its affiliates, and any person acting on their behalf reasonably believe that the purchaser is outside the United States.
(b) Undertakings in Compliance with Regulation S 6.2 Except as otherwise provided in this Section 106, the Underwriter Agent agrees with the Corporation Issuer that with respect to each offer and sale of the Subscription Receipts Shares they will offer the Subscription Receipts Shares only in accordance with Rule 903 of Regulation S and accordingly neither the UnderwriterAgent, its affiliates, nor any person acting on their behalf has made or will make (except as permitted by Section 106.3):
(ia) any offer to sell, or any solicitation of an offer to buy, Subscription Receipts Shares to any U.S. Person, to any person purchasing for the benefit or account of a U.S. Person, or any person in the United States;
(iib) any sale of Subscription Receipts Securities unless, at the time the buy order was or will have been originated the Purchaser is:
A. (i) outside the United States; or
B. (ii) the UnderwriterAgent, their its affiliates and any person acting on their behalf reasonably believe that the Purchaser Subscriber is outside the United States; nor
(iiic) any Directed Selling Efforts in the United States with respect to the Subscription ReceiptsSecurities.
(c) Offering by Underwriter in the United States 6.3 The Underwriter acknowledge Agent acknowledges that the Subscription Receipts Shares have not been registered under the U.S. Securities Act and may not be offered or sold, with respect to offers and sales to or for the benefit or account of U.S. Persons, except pursuant to Rule 506 of Regulation D. Accordingly, the UnderwriterAgent, on its own behalf and on behalf of its affiliates, represents, warrants and covenants to the Corporation Issuer that, with respect to each offer or sale of Subscription Receipts Shares to or for the benefit or account of U.S. Persons, it has they have offered and sold, and will offer and sell, securities to Purchasers in the United States only in the following manner:
(ia) the Underwriter Agent will offer the Subscription Receipts Shares in the United States only through a broker dealer registered pursuant to Section 15(b) of the 1934 Act and in good standing with the National Association of Securities Dealers Inc. (a “U.S. Affiliate”), solely to U.S. Accredited Investors, and only in states of the United States where such broker-dealer is registered, or otherwise exempt from registration;
(iib) 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 U.S. Securities Act has been or will be used by the UnderwriterAgent, the U.S. Affiliate, their affiliates or anyone acting on their behalf, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Subscription Receipts Shares to U.S. Persons;
(iiic) any offer, sale or solicitation of an offer to buy Subscription Receipts the Shares that has been made or will be made to U.S. Persons or in the United States was or will be made only to U.S. Accredited Investors, and in transactions that are exempt from registration under applicable state securities laws and require no filings or actions pre-offer or pre-sale except as otherwise agreed by the CorporationIssuer;
(ivd) notwithstanding the wording of this Agreement, which contemplates the purchase of the Subscription Receipts by the Underwriter, all offers and sales of Subscription Receipts in the United States or to U.S. Persons will be made only to U.S. Accredited Investors who will purchase the Subscription Receipts directly from the Corporation on a “substituted purchaser” basis in compliance with Rule 506 of Regulation D;
(v) the Underwriter it has not entered and will not enter into any contractual arrangement with respect to the distribution of the Subscription ReceiptsSecurities, except with its affiliates, any selling group members or with the prior written consent of the Corporation. The Underwriter shall require each selling group member to agree in writing, to comply with, Issuer and it shall use its best commercially reasonable efforts to ensure that the each selling group member complies with the same the applicable provisions of this Section 10 as apply to such Underwriter as if such provisions applied to such selling group member6;
(vie) all offers of Subscription Receipts Shares in the United States or to or for the benefit or account of a U.S. Person have been and will be made through a U.S. Affiliate and all sales of the Subscription Receipts Shares in the United States or to or for the benefit or account of a U.S. Person will be made by the Corporation Issuer to U.S. Accredited Investors designated by the U.S. Affiliate or by the Underwriter Agent acting through a U.S. Affiliate;
(viif) immediately prior to soliciting any Purchaser that is in the United States or for the benefit or account of a U.S. Person, the UnderwriterAgent, the U.S. Affiliate, their respective affiliates, and any person acting on their behalf, had or will have had, as the case may be, reasonable grounds to believe and did or will, as the case may be, believe that each such Purchaser was a U.S. or is an Accredited Investor, and at the time of completion of each sale to or for the benefit or account of a U.S. Person or a person in the United States, the UnderwriterAgent, the U.S. Affiliate, their respective affiliates, and any person acting on their behalf will have reasonable grounds to believe and will believe, that each Purchaser designated by such Underwriter Agent or the U.S. Affiliate to purchase Subscription Receipts Shares from the Corporation Issuer is a U.S. an Accredited Investor;
(viiig) on the Closing Dateeach Closing, the Underwriter Agent together with the U.S. Affiliate, will provide a certificate, substantially in the form of Schedule “C”Appendix I, relating to the manner of the offer and sale of the Subscription Receipts Shares in the United States and to or for the benefit or account of U.S. Persons, or a written confirmation that it did not sell any Subscription Receipts Shares in the United States or to or for the benefit or account of U.S. Persons or arrange for any purchasers that are in the United States or are U.S. Persons;
(ixh) neither the UnderwriterAgent, the U.S. Affiliate, their respective affiliates, or any person acting on their behalf, 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 Subscription ReceiptsSecurities;
(xi) prior to completion of any sale of Subscription Receipts Shares to a person in the United States or to a U.S. Person, the Underwriter Agent shall cause each such Purchaser of Subscription Receipts Shares to execute an agreement in the form agreed upon by the Underwriter Agent and the CorporationIssuer;
(xij) the Underwriter Agent shall give the Corporation Issuer reasonable notice of the U.S. jurisdictions in which it proposes to offer and sell the Subscription ReceiptsShares, so as to assist the Corporation Issuer in satisfying its obligations under Paragraph 6.1(f) and to permit the Corporation Issuer to timely submit any and all filings required of the U.S. Securities Act and applicable state laws;
(xii) the Underwriter will not directly or indirectly, take any actions or conduct any activities which will cause the Corporation to cease to be a Foreign Private Issuer; and
(xiiik) the representations and warranties and covenants of the Underwriter Agent contained in this Section 10 6 shall be true and correct as of the Closing, with the same force and effect as if then made by the UnderwriterAgent.
Appears in 1 contract
Sources: Agency Agreement (Vuzix Corp)
U.S. Law. (a) Representations of the Corporation Regarding U.S. Law 12.1 The Corporation Issuer represents, warrants, covenants and agrees that:
(ia) the Corporation is, and at the Closing Date will be, Issuer is a Foreign Private Issuer with and reasonably believes that, at the commencement of the Private Placement there was, and currently there is, no “substantial U.S. market interest” in any of its securities (as that such term is defined in Regulation S5);
(iib) it is not, and agrees to use its best efforts not to become, at any time prior to the expiration of three years after the Final Closing, an “investment company” as defined in the United States Investment Company Act of 1940;
(c) during the period in which the Securities are offered for sale, neither it nor any of its affiliates, nor any person acting on their behalf (other than the Underwriter, its respective affiliates or any person acting on their behalf, in respect of which no representation is made) has made or will make any Directed Selling Efforts in the United States with respect to distributions under Regulation 5, or has taken or will take any action in violation of Regulation M under the United States Securities Exchange Act of 1934, as amended, (the “1934 Act”), or has taken or will take any action that would cause the exemption from registration under Rule 506 of Regulation D or Rule 903 of Regulation S to be unavailable for offers and sales of the Subscription Receipts Securities, pursuant to this Agreement;
(iiid) beginning six months prior to the date of commencement of the Private Placement, continuing throughout the Private Placement and for six months after the Final Closing, none of the CorporationIssuer, any of its affiliates or any person acting on its or their behalf (other than the Underwriter, the U.S. Affiliate, their respective affiliates or any person acting on their behalf, in respect of which no representation is made) has offered have engaged or will offer engage in any form of Directed Selling Efforts with respect to selloffers or sales of common shares of the Issuer or securities exchangeable into common shares of the Issuer, or has solicited have engaged in or will solicit engage in any general solicitation or advertising with respect to offers to buy, any or sales of the Subscription Receipts Securities in the United States by means of any form of general solicitation or general advertisingStates, which includes any including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media media, posted or disseminated on the Internet or other similar electronic media, or broadcast over radio, or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising in a manner that would cause the exemption is provided by Rule 506 of Regulation D or Regulation S to be unavailable for offers and sales of the Units;
(e) the Issuer covenants and agrees with the Agents to execute or procure the execution of all documents and to use its commercially reasonable efforts to take or cause to be taken, both before and after each Closing, all such steps as may be reasonably necessary or desirable to establish, to the satisfaction of counsel for the Agents and counsel for the Issuer, any and all legal requirements to enable the Agents to effer the Securities for sale in the United States under Rule 506 of Regulation D in accordance with this Agreement and under exemptions from registration under applicable state securities laws; and
(f) except with respect to offers or sales to Accredited Investors in reliance upon an exemption, from registration under Rule 506 of Regulation D, neither the Issuer nor any of its affiliates, nor any person acting on its or their behalf, has made or will make:
(i) any offer to sell, or any solicitation of an offer to buy, Securities to any U.S. Person, or a person in the United States; or
(ii) any sale of Securities unless at the time the buy order was or will have been originated, the purchaser is:
(A) outside the United States; or
(B) the Issuer, its affiliates, and any person acting on its or their behalf reasonably believe that the purchaser is outside the United States.
12.2 Except as otherwise provided in this Section 12, the Agents agree with the Issuer that with respect to each offer and sale of the Securities it will offer the Securities only in accordance with Rule 903 of Regulation S and accordingly neither the Agents, their affiliates, nor any person acting on its or their behalf has made or will make:
(a) any offer to sell, or any solicitation of an offer to buy, Securities to any U.S. Person or any person in the United States;
(b) any sale of Securities unless, at the time the buy order was or will have been originated the subscriber is:
(i) outside the United States; or
(ii) the Agent, its affiliates and any person acting on its or their behalf reasonably believe that the Purchaser is outside the United States; nor
(c) any Directed Selling Efforts in the United States with respect to the Securities.
12.3 The Agents acknowledge that the Securities have not been registered under the U.S. Securities Act and may not be offered or sold in the United States or to U.S. Persons, except to Accredited Investors pursuant to Rule 506 of Regulation D. Accordingly, the Agents represent, warrant and covenant to the Issuer that, with respect to each offer or sale of Securities in the United States or to U.S. Persons, it has offered and sold, and will offer and sell, Securities to Purchasers only in the following manner:
(a) the Agents will offer the Securities only through a United States registered broker-dealer only in states of the United States where such broker-dealer is registered, or otherwise exempt from registration;
(b) no form of general solicitation or general advertising (as those terms are used in Regulation D) has been or will be used by the Agents, their affiliates or anyone acting on its or their behalf, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media, posted or disseminated on the Internet or other similar electronic media, or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, or in any manner involving a public offering within the meaning of Section 4(2) of the U.S. Securities Act;
(iv) the Corporation has not, for a period of six months prior to the commencement of the offering of Subscription Receipts, sold, offered for sale or solicited any offer to buy any of its securities and will not sell, offer for sale or solicit any offer to buy any of its securities, in a manner that would be integrated with the offer and sale of the Subscription Receipts and would cause the exemptions from registration set forth in Rule 506 of Regulation D to become unavailable with respect to the offer and sale of the Subscription Receipts in the United States or to or for the benefit or account of U.S. Persons;
(v) neither the Corporation nor any of its predecessors or affiliates has been subject to any order, judgment, or decree of any court of competent jurisdiction temporarily, preliminarily or permanently enjoining such person for failure to comply with Rule 503 of Regulation D;
(vi) the Corporation covenants and agrees with the Underwriter to execute or procure the execution of all documents and to use its commercially reasonable efforts to take or cause to be taken both before and after the Closing Date, all such steps as may be reasonably necessary or desirable to establish, to the satisfaction of counsel for the Underwriter and counsel for the Corporation, any and all legal requirements to enable the Underwriter to offer the Subscription Receipts for sale in the United States under Rule 506 of Regulation D in accordance with this Agreement;
(vii) the Corporation covenants and agrees that in connection with the exercise or deemed exercise of the Subscription Receipts it will not pay or give, directly or indirectly, any commission or other remuneration for soliciting such exchange; and
(viii) except with respect to offers or sales of Subscription Receipts to U.S. Accredited Investors in reliance upon an exemption from registration under Rule 506 of Regulation D, neither the Corporation nor any of its affiliates, nor any person acting on their behalf (other than the Underwriter, the U.S. Affiliate, their respective affiliates or any person acting on their behalf, in respect of which no representation is made), has made or will make:
A. any offer to sell, or any solicitation of an offer to buy, any Subscription Receipts to or for the benefit or account of a U.S. Person, or a person in the United States; or
B. any sale of Subscription Receipts unless, at the time the buy order was or will have been originated, the purchaser is:
(1) outside the United States; or
(2) the Corporation, its affiliates, and any person acting on their behalf reasonably believe that the purchaser is outside the United States.
(b) Undertakings in Compliance with Regulation S Except as otherwise provided in this Section 10, the Underwriter agrees with the Corporation that with respect to each offer and sale of the Subscription Receipts they will offer the Subscription Receipts only in accordance with Rule 903 of Regulation S and accordingly neither the Underwriter, its affiliates, nor any person acting on their behalf has made or will make (except as permitted by Section 10):
(i) any offer to sell, or any solicitation of an offer to buy, Subscription Receipts to any U.S. Person, to any person purchasing for the benefit or account of a U.S. Person, or any person in the United States;
(ii) any sale of Subscription Receipts unless, at the time the buy order was or will have been originated the Purchaser is:
A. outside the United States; or
B. the Underwriter, their affiliates and any person acting on their behalf reasonably believe that the Purchaser is outside the United States; nor
(iii) any Directed Selling Efforts in the United States with respect to the Subscription Receipts.
(c) Offering by Underwriter in the United States The Underwriter acknowledge that the Subscription Receipts have not been registered under the U.S. Securities Act and may not be offered or sold, with respect to offers and sales to or for the benefit or account of U.S. Persons, except pursuant to Rule 506 of Regulation D. Accordingly, the Underwriter, on its own behalf and on behalf of its affiliates, represents, warrants and covenants to the Corporation that, with respect to each offer or sale of Subscription Receipts to or for the benefit or account of U.S. Persons, it has offered and sold, and will offer and sell, securities to Purchasers in the United States only in the following manner:
(i) the Underwriter will offer the Subscription Receipts in the United States only through a broker dealer registered pursuant to Section 15(b) of the 1934 Act and in good standing with the National Association of Securities Dealers Inc. (a “U.S. Affiliate”), solely to U.S. Accredited Investors, and only in states of the United States where such broker-dealer is registered, or otherwise exempt from registration;
(ii) 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 U.S. Securities Act has been or will be used by the Underwriter, the U.S. Affiliate, their affiliates or anyone acting on their behalf, including advertisements, articles, notices or other communications published in any newspaper, magazine, or similar media or broadcast over radio or television, or any seminar or meeting whose attendees had been invited by general solicitation or general advertising, in connection with the offer or sale of the Subscription Receipts to U.S. Persons;
(iii) any offer, sale or solicitation of an offer to buy Subscription Receipts that has been made or will be made to U.S. Persons or in the United States was or Securities will be made only to U.S. Accredited Investors, and Investors in transactions that are exempt from registration under Rule 506 of Regulation D and under applicable state securities laws and require no filings or actions prein compliance with applicable U.S. federal and state broker-offer or pre-sale except as otherwise agreed by the Corporationdealer requirements;
(iv) notwithstanding the wording of this Agreement, which contemplates the purchase of the Subscription Receipts by the Underwriter, all offers and sales of Subscription Receipts in the United States or to U.S. Persons will be made only to U.S. Accredited Investors who will purchase the Subscription Receipts directly from the Corporation on a “substituted purchaser” basis in compliance with Rule 506 of Regulation D;
(v) the Underwriter has not entered and will not enter into any contractual arrangement with respect to the distribution of the Subscription Receipts, except with its affiliates, any selling group members or with the prior written consent of the Corporation. The Underwriter shall require each selling group member to agree in writing, to comply with, and shall use its best efforts to ensure that each selling group member complies with the same the provisions of this Section 10 as apply to such Underwriter as if such provisions applied to such selling group member;
(vi) all offers of Subscription Receipts in the United States or to or for the benefit or account of a U.S. Person have been and will be made through U.S. Affiliate and all sales of the Subscription Receipts in the United States or to or for the benefit or account of a U.S. Person will be made by the Corporation to U.S. Accredited Investors designated by the U.S. Affiliate or by the Underwriter acting through U.S. Affiliate;
(vii) immediately prior to soliciting any Purchaser that is in the United States or for the benefit or account of a U.S. Person, the Underwriter, the U.S. Affiliate, their respective affiliates, and any person acting on their behalf, had reasonable grounds to believe and did believe that each such Purchaser was a U.S. Accredited Investor, and at the time of completion of each sale to or for the benefit or account of a U.S. Person or a person in the United States, the Underwriter, the U.S. Affiliate, their respective affiliates, and any person acting on their behalf will have reasonable grounds to believe and will believe, that each Purchaser designated by such Underwriter or the U.S. Affiliate to purchase Subscription Receipts from the Corporation is a U.S. Accredited Investor;
(viii) on the Closing Date, the Underwriter together with the U.S. Affiliate, will provide a certificate, substantially in the form of Schedule “C”, relating to the manner of the offer and sale of the Subscription Receipts in the United States and to or for the benefit or account of U.S. Persons, or a written confirmation that it did not sell any Subscription Receipts in the United States or to or for the benefit or account of U.S. Persons or arrange for any purchasers that are in the United States or are U.S. Persons;
(ix) neither the Underwriter, the U.S. Affiliate, their respective affiliates, or any person acting on their behalf, 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 Subscription Receipts;
(xd) prior to completion of any sale of Subscription Receipts to a person in the United States or to a U.S. PersonSecurities, the Underwriter Agents shall cause each such Purchaser of Subscription Receipts to execute an agreement in the a form agreed upon consented to by the Underwriter Issuer and the Corporation;Agents and executed by the Purchaser; and
(xie) the Underwriter Agents shall give the Corporation Issuer reasonable notice of the U.S. jurisdictions in which it proposes to offer and sell the Subscription ReceiptsSecurities, so as to assist the Corporation in satisfying its obligations and to permit the Corporation Issuer’s counsel to timely submit any and all filings required necessary in order to perfect a claim of exemption from the securities registration provisions of the U.S. Securities Act and applicable state laws;
(xii) the Underwriter will not directly or indirectly, take any actions or conduct any activities which will cause the Corporation to cease to be a Foreign Private Issuer; and
(xiii) the representations and warranties and covenants of the Underwriter contained in this Section 10 shall be true and correct as of the Closing, with the same force and effect as if then made by the Underwriter.
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