Additional Representations and Warranties of the Company Sample Clauses: 426 Samples

Additional Representations and Warranties of the Company. In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM. The Company represents and warrants to the Agents, and acknowledges that the Agents are relying upon such representations and warranties in the offer and sale of the Offered Shares, that: (a) the Company and RM have been duly incorporated or organized and are validly existing and in good standing under the laws of the jurisdiction of their incorporation and have all requisite corporate capacity, power and authority to carry on their business, as now conducted and as presently proposed to be conducted by them, and to own their properties and assets and conduct their business (and to own their proposed properties and proposed assets and conduct their proposed business) as described in the Prospectus; (b) all of the issued and outstanding shares of, or other equity interests in, RM are owned directly or indirectly by the Company, have been duly and validly authorized and issued, are fully paid and non-assessable, and are owned by the Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge of the Company could have, the right to acquire any ownership interest in RM; (c) immediately prior to the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the Final Prospectus, since December 31, 2017: (i) there has been no Material Adverse Change (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there has been no transaction entered into by the Company which is material to the Company; (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; (iv) there has not been any material change in the share capital, long-term debt, short-term debt, net current assets, net assets, financial condition or operations of the Company or any of the subsidiaries other than changes in the ordinary course of business; and (v) none of the Company or any of its subsidiaries has cancelled any debts or entitlements; (e) except where non-compliance does not have and would not reasonably be expected to have a Material Adverse Effect, the Company has conducted, is conducting and will conduct its business in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on and will carry on its business and the Company has not received any notice of any alleged violation of any such laws, rules and regulations; (f) the Company, RM, and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR (the "Licence to Produce"); (h) the Company has filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required under the ACMPR and by Health Canada in respect of RM's application for the Licence to Produce; (i) neither the Company, nor RM, nor any other subsidiary of the Company, to the knowledge of the Corporation, is required to obtain any permits or licences other than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge of the Company, in connection with its business is being conducted in accordance with best industry practices and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business of the Company and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiaries; (l) neither the Company, nor any of its subsidiaries, including RM, is involved as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records of the Company and its subsidiary made available in connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of all material proceedings of the shareholders, the directors, all committees of the directors of each that have been minuted or resolved, as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records of the Company, whether of a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in the business in which the Company is engaged; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect with respect to the payment of any premium or compliance with any of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policy; (p) the Company has all requisite corporate power, capacity and authority to enter into and deliver this Agreement and to perform its obligations hereunder (including the execution and delivery of the Preliminary Prospectus, the Final Prospectus and any Prospectus Amendments and the filing of each of them with the Securities Commissions in accordance with this Agreement) and thereunder, and this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the general qualifications that: (i) enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors' rights generally; (ii) equitable remedies, including the remedies of specific performance and injunctive relief, are available only in the discretion of the applicable court; (iii) the equitable or statutory powers of the courts in Canada having jurisdiction to stay proceedings before them and the execution of judgments; (iv) rights to indemnity and contribution hereunder may be limited under applicable law; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; and (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by it may be limited under applicable law; (q) the Company is not in default or breach of, and the execution and delivery of, and the performance of and compliance with the terms of, this Agreement and the performance of any of the transactions contemplated hereby by the Company, do not and will not result in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Company, or any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Company is a party or by which it is bound, or any judgment, decree, law, order, statute, rule or regulation applicable to the Company, which default or breach might reasonably be expected to result in a Material Adverse Effect; (r) the Financial Statements have been prepared in conformity with International Financial Reporting Standards applied on a consistent basis throughout the periods involved and present fairly, in all material respects: (i) the financial position and condition of the Company at the dates thereof, the results of operations of the Company for the periods then ended, and all material assets, liabilities or obligations (absolute, accrued, contingent or otherwise) of the Company; and (ii) the revenue, royalties, operating expenses, and operating income of the assets of the Company, as the case may be; (s) the financial data under the heading "Selected Financial Information" contained in the summary of the Final Prospectus has been compiled on a basis consistent with that of the Financial Statements; (t) the Company will, following the Closing, maintain a system of internal control over financial reporting that complies with the requirements of NI 52-109 and has been designed by the Company's Chief Executive Officer and Chief Financial Officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with International Financial Reporting Standards. Other than as disclosed in the Responses, the Company is not aware of any material weaknesses in its internal control over financial reporting. The Company will, following the Closing, maintain a system of disclosure controls and procedures that is designed to provide reasonable assurance that information required to be disclosed by the Company under Applicable Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified under Applicable Canadian Securities Laws and to ensure that information required to be disclosed by the Company under Applicable Canadian Securities Laws is accumulated and communicated to the Company's management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure; (u) the Company is the absolute legal and beneficial owner of, and has good and marketable title to, all of the material properties and assets thereof, including the RM Property, and no other property or assets are necessary for the conduct of the business of the Company as currently conducted. Any and all of the agreements and other documents and instruments pursuant to which the Company holds the property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance with the terms thereof, and such properties and assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant to which the Company derives the interests thereof in such property are in good standing. To the Company's knowledge, there is no claim nor the basis of any claim that might or could materially adversely affect the right of the Company to use, transfer or otherwise exploit its assets (including Intellectual Property), none of the properties (or any interest in, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to have a Material Adverse Effect; (w) no proposed acquisition by the Company has progressed to a state where a reasonable person would believe that the likelihood of the Company completing the acquisition is high and that, if completed by the Company at the date of the Final Prospectus, would be a significant acquisition for the pu

Appears in 1 contract

Sources: Agency Agreement

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriters, and acknowledges that the ~~Agents~~ Underwriters are relying upon such representations and warranties in purchasing the ~~offer~~ Firm Shares and ~~sale~~ the Optional Shares, if any, that, as of the ~~Offered Shares~~date hereof, ~~that~~as of the Closing Date and as of each Option Closing Date: (a) the Company and RM have been duly incorporated or organized and are validly existing and in good standing under the laws of the jurisdiction of their incorporation and have all requisite corporate capacity, power and authority to carry on their business, as now conducted and as presently proposed to be conducted by them, and to own their properties and assets and conduct their business (and to own their proposed properties and proposed assets and conduct their proposed business) as described in the Prospectus; (b) all of the issued and outstanding shares of, or other equity interests in, RM are owned directly or indirectly by the Company, have been duly and validly authorized and issued, are fully paid and non-assessable, and are owned by the Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge of the Company could have, the right to acquire any ownership interest in RM; (c) immediately prior to the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the Final Prospectus, since December 31, 2017: (i) there has been no Material Adverse Change (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there has been no transaction entered into by the Company which is material to the Company; (iii) there There has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its ~~shares; (iv) there has not been any material change~~ shares other than as disclosed in the ~~share capital~~Offering Documents; (b) The Company has been duly incorporated and is a valid and existing corporation under the Canada Business Corporations Act and has all requisite corporate power, ~~long-term debt~~capacity and authority to carry on its business as described in the Offering Documents and to own and lease its properties and assets and to execute and file with the Canadian Securities Regulators and the SEC the Offering Documents and the Offering Document Amendments, ~~short-term debt~~if any, ~~net current assets, net assets, financial condition or operations~~ in each case to the extent required to be so executed and filed; (c) Each of the ~~Company or any~~ Subsidiaries has been duly incorporated and is a valid and existing corporation under the laws of ~~the subsidiaries other than changes~~ its jurisdiction of incorporation and has all requisite corporate power, capacity and authority to own and lease its properties and assets and to carry on its business as presently conducted and as proposed to be conducted as contemplated in the ~~ordinary course of business;~~ Offering Documents; (d) Other than The ▇▇▇▇ Group Inc. (Canada) and ▇▇▇▇ Group (vU.S.) ~~none of~~ Inc., the Company ~~or any~~ has no subsidiaries required to be disclosed pursuant to item 3.2 of ~~its subsidiaries has cancelled any debts or entitlements~~Form 51-102F2; (e) ~~except where non-compliance does not have and would not reasonably be expected to have a Material Adverse Effect,~~ Each of the Company and the Subsidiaries is qualified to carry on business under the laws of each jurisdiction in which it carries on a material portion of its business; (f) Each of the Company and the Subsidiaries has ~~conducted,~~ conducted and is conducting and will conduct its business in compliance in all material respects with all applicable laws, rules and regulations or other lawful requirements of any Governmental Authority applicable to it of each jurisdiction in which it carries on ~~and will carry on~~ a material portion of its business and the Company has not received any notice of any alleged violation of any such laws, rules and regulations; (f) the Company, RM, and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR (the "Licence to Produce"); (h) the Company has filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required under the ACMPR and by Health Canada in respect of RM's application for the Licence to Produce; (i) neither the Company, nor RM, nor any other subsidiary of the Company, to the knowledge of the Corporation, is required to obtain any permits or licences other than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge of the Company, in connection with its business is being conducted in accordance with best industry practices and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses~~, permits~~, registrations and qualifications in all jurisdictions in which it carries on ~~its~~ business which are necessary or desirable to carry on the business of the Company and ~~of RM, as~~ the ~~case may be,~~ Subsidiaries as now conducted and as ~~presently proposed~~ contemplated to be ~~conducted;~~ conducted in the Offering Documents (~~ii)~~ except where the failure to so conduct its business or to hold such licenses, registrations or qualifications would not, individually or in the aggregate, have a Material Adverse Effect), all such ~~licences, permits~~licenses, registrations or qualifications are valid and existing and in good ~~standing;~~ standing (~~iii~~except where the lack of such valid or existing license would not have any Material Adverse Effect) ~~all~~ and none of such licenses, ~~permits~~registrations or qualifications contains any burdensome term, ~~registrations and qualifications and~~ provision, condition or limitation which has or is likely to have any ~~related application materials and correspondence has been provided to~~ Material Adverse Effect; (g) Other than as disclosed in the ~~Agents; and (iv)~~ Offering Documents, the Company is not aware of any ~~legislation~~proposed laws, ~~regulation, rule~~ rules or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiariesregulations that would have a Material Adverse Effect; (lh) neither the Company, nor any of its subsidiaries, including RM, is involved as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the The minute books ~~and corporate records~~ of the Company and ~~its subsidiary made available~~ each of the Subsidiaries are, in ~~connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of~~ all material ~~proceedings of the shareholders~~respects, ~~the directors~~true, ~~all committees of the directors of each that have been minuted or resolved, as applicable,~~ complete and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicablecorrect; (ni) ~~the~~ The books of account and other records of the ~~Company~~Company and each of the Subsidiaries, whether of a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices ~~that are customary~~ in ~~the business in which the Company is engaged~~all material respects; (oj) Other than where the ~~Company's insurance policies~~ failure do so would not have a Material Adverse Effect, the Company and each of the Subsidiaries has duly and on a timely basis filed all tax returns required to be filed by it, has paid all taxes due and payable by it and has paid all assessments and reassessments and all other taxes, governmental charges, penalties, interest and other fines due and payable by it and adequate provision has been made for taxes payable for any completed fiscal period for which tax returns are ~~valid~~ not yet required to be filed and ~~enforceable and in full force and effect~~there are no agreements, ~~are underwritten by unaffiliated and reputable insurers~~waivers, ~~are sufficient~~ or other arrangements providing for ~~all applicable requirements~~ an extension of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect time with respect to the filing of any tax return or payment of any ~~premium~~ tax, governmental charge or ~~compliance~~ deficiency by the Company or any Subsidiary and to the knowledge, information and belief of the Company there are no material actions, suits, proceedings, investigations or claims threatened or pending against the Company or any Subsidiary in respect of taxes, governmental charges or assessments or any material matters under discussion with any ~~of the provisions contained in~~ Governmental Authority relating to taxes, governmental charges or assessments asserted by any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policyauthority; (pk) No consent, approval, permit, authorization, or order of, or no filing with, any court or Governmental Authority is required by the Company or necessary for the execution, delivery and the performance by the Company of its obligations under this Agreement, other than as may be required under the Applicable Securities Laws with regard to the distribution of the Shares or as have been or will be obtained or made prior to the Closing Date; (l) The Company has all requisite corporate power, capacity and authority to enter into ~~and deliver~~ this Agreement and to perform its obligations ~~hereunder~~ under this Agreement (~~including~~ including, without limitation, to create, issue and sell the execution and delivery of the Preliminary Prospectus, the Final Prospectus and any Prospectus Amendments and the filing of each of them with the Securities Commissions in accordance with this Agreement) and thereunderShares), and this Agreement has been duly authorized by all necessary corporate action and has been duly executed and delivered by the ~~Company~~ Company, and ~~constitutes~~ this Agreement is a legal, valid and binding obligation of the ~~Company,~~ Company enforceable against the Company in accordance with its terms, subject to the ~~general qualifications that~~following: (i) ~~enforcement~~ enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors' ’ rights generally; (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law), (iii) equitable remedies, including the remedies of specific performance and injunctive relief, are available only in the discretion of the applicable court; (~~iii~~iv) the courts having jurisdiction may have equitable or statutory powers ~~of the courts in Canada having jurisdiction~~ to stay proceedings before them and the execution of judgments; , and (ivv) rights to indemnity and contribution hereunder may be limited under applicable law; (m) The Company has all requisite corporate power, capacity and authority to perform its obligations under the Acquisition Agreement, and the Acquisition Agreement has been duly authorized, executed and delivered by the Company, and is a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the following: (i) enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors’ rights generally; (vii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law), (iii) equitable remedies, including the remedies of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined specific performance and injunctive relief, are available only in the discretion of the applicable court; (iv) the courts having jurisdiction may have equitable or statutory powers to stay proceedings before them and ~~(vi) enforceability~~ the execution of ~~the provisions exculpating a party from liability or duty otherwise owed by it may be limited under applicable law~~judgments; (qn) the Company is and its Subsidiaries are not in default under or in breach of, and the ~~execution and delivery of~~execution, ~~and the~~ delivery, performance of and compliance with the terms ~~of,~~ of this Agreement ~~and the performance of any of the transactions contemplated hereby~~ by the ~~Company, do not and~~ Company will not result in any breach of, or be in conflict with or constitute a default under, ~~and do not and will not~~ or create a state of facts which, after notice or lapse of time or both, ~~will result in a breach of or~~ would constitute a ~~default~~ default, or give rise to any lien, under~~, any term~~ : (i) the articles or ~~provision of the articles,~~ by-laws ~~or resolutions~~ of the ~~directors~~ Company or ~~shareholders of~~ its Subsidiaries, as the ~~Company~~case may be; (ii) any material contract, ~~or any~~ mortgage, note, indenture, ~~contract, agreement (written or oral)~~agreement, instrument, lease or other document to which the Company or any of its Subsidiaries is a party or by which ~~it is~~ the Company or its Subsidiaries, are bound; (iii) any resolutions of the directors, or securityholders, as applicable, of the Company or its Subsidiaries; or (iv) any judgment, decree~~, law~~, order, statute, rule or regulation applicable to the ~~Company~~Company or its Subsidiaries which would, ~~which default or breach might reasonably be expected to result~~ in any such event, have a Material Adverse Effect; (ro) There has not been any material change in the ~~Financial Statements have been prepared in conformity with International Financial Reporting Standards applied on a consistent basis throughout the periods involved and present fairly~~capital, ~~in all material respects: (i) the financial position and condition of the Company at the dates thereof, the results of operations of the Company for the periods then ended, and all material~~ assets, liabilities or obligations (absolute, accrued, contingent or otherwise) of the ~~Company; and~~ Company from the position set forth in the Financial Statements except as disclosed in the Offering Documents and there has not been any adverse material change in the business, operations, capital, properties, assets, liabilities (iiabsolute, accrued, contingent or otherwise), condition (financial or otherwise) ~~the revenue, royalties, operating expenses, and operating income~~ or results of operations of the ~~assets~~ Company and the Subsidiaries (taken as a whole) since the date of the ~~Company~~Financial Statements, except as disclosed in the ~~case may be~~Offering Documents; and since that date there have been no material facts, transactions, events or occurrences which could materially adversely affect the business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of the Company and its Subsidiaries (taken as a whole) which have not been disclosed in the Offering Documents; (sp) The Financial Statements present fairly, in all material respects, in accordance with IFRS, consistently applied, the financial ~~data under~~ position and condition, the ~~heading "~~results of operations, cash flows and the other information purported to be shown therein of the Company on a consolidated basis as at the dates thereof and for the periods then ended and reflect all assets, liabilities and obligations (absolute, accrued, contingent or otherwise) of the Company on a consolidated basis as at the dates thereof required to be disclosed by IFRS; (q) The Selected Financial ~~Information" contained~~ Information included in the ~~summary of the Final Prospectus~~ Offering Documents has been compiled on a basis consistent with that of the Financial Statements; (r) The Pro Forma Financial Statements have been prepared in accordance with IFRS, consistently applied, and have been prepared and presented in accordance with Applicable Securities Laws. The Pro Forma Financial Statements include all adjustments necessary to present fairly in all material respects the pro forma consolidated financial position of the Company as at the dates and for the periods referred to in the Pro Forma Financial Statements after giving effect to the completion of the Acquisition and do not contain a misrepresentation. The assumptions contained in such Pro Forma Financial Statements are suitable, supported and consistent with the consolidated financial results of the Company. The Pro Forma Financial Information included in the Offering Documents has been compiled on a basis consistent with that of the Pro Forma Financial Statements; (s) There are no off-balance sheet transactions, arrangements, obligations (including contingent obligations) or other relationships of the Company or its Subsidiaries with unconsolidated entities or other persons required to be disclosed by Applicable Securities Laws in a prospectus to be filed with the SEC or the Canadian Securities Regulators that are not described in the Offering Documents; (t) Based upon representations made by the Company’s auditor to the Company, the Company’s auditor is an independent chartered accountant with respect to the Company ~~will~~as required by Applicable Securities Laws; (u) There has not been any reportable disagreement (within the meaning of Section 4.11 of National Instrument 51-102 – Continuous Disclosure Obligations of the Canadian Securities Administrators) with the Company’s auditor; (v) To the knowledge of the Company after due inquiry, ~~following~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, who has certified certain financial statements of the ~~Closing~~Acquired Business and delivered its report with respect to the audited consolidated financial statements of the Acquired Business and the schedules included or incorporated by reference in each of the Time of Sale Prospectus and Final Offering Documents, ~~maintain~~ is an independent auditor with respect to the Acquired Business within the meaning of Applicable Securities Laws and the American Institute of Certified Public Accountants Code of Professional Conduct and its interpretations; (w) The Company maintains a system of internal control over financial reporting that complies with the requirements of NI National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings of the Canadian Securities Administrators, and has been designed by the Company's ’s Chief Executive Officer and Chief Financial Officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with ~~International Financial Reporting Standards~~IFRS. ~~Other than as disclosed in the Responses, the~~ The Company is not aware of any material weaknesses in its internal control over financial reporting. The Company ~~will, following the Closing, maintain~~ maintains a system of disclosure controls and procedures that is designed to provide reasonable assurance that information required to be disclosed by the Company under Applicable ~~Canadian~~ Securities Laws is recorded, processed, summarized and reported within the time periods specified under Applicable ~~Canadian~~ Securities Laws and to ensure that information required to be disclosed by the Company under Applicable ~~Canadian~~ Securities Laws is accumulated and communicated to the Company's ’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure; (ux) Each of the Company ~~is the absolute legal~~ and ~~beneficial owner of, and~~ its Subsidiaries has ~~good and marketable title to, all of the material~~ its properties and assets ~~thereof, including the RM Property,~~ insured against loss or damage by insurable hazards or risks that is of a type and ~~no other property or assets are necessary for the conduct of~~ in an amount typical to the business in which the Company operates as conducted by a reasonably prudent person based on the advice of reputable insurance brokers consulted by such person; in the last twelve months neither the Company nor its Subsidiaries have made any material claim on any policy of insurance or been refused any material insurance coverage sought or applied for; and the Company does not have any reason to believe that it will not be able to renew the existing insurance coverage of the Company or its Subsidiaries as ~~currently conducted. Any~~ and ~~all of the agreements and other documents and instruments pursuant~~ when such coverage expires or obtain similar coverage from similar insurers as may be necessary to which the Company holds the property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance continue with the terms thereof, and such properties and assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant to which the Company derives the interests thereof in such property are in good standing. To the Company's knowledge, there is no claim nor the basis of any claim that might or could materially adversely affect the right of the Company to use, transfer or otherwise exploit its assets (including Intellectual Property), none of the properties (or any interest in, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done businesses at a cost that would ~~reasonably be expected to~~ not have a Material Adverse Effect; (wy) ~~no proposed acquisition by~~ To the knowledge of the Company, all material receivables recorded on the books of the Company are bona fide and are good and collectible without set off or counterclaim; (z) Except as disclosed in the Offering Documents, the Company has ~~progressed to a state where a reasonable person would believe that~~ undertaken an asset analysis and the ~~likelihood~~ Company does not anticipate making any material write downs in respect of the assets of the Company ~~completing~~ or any parts thereof; (aa) All material bonuses, commissions, salaries and other amounts owing to employees are reflected and have been accrued in the ~~acquisition is high~~ books of account of the Company; (bb) Each Employee Plan has been maintained in all material respects in accordance with its terms and ~~that~~with the requirements prescribed by any and all statutes, ~~if completed by~~ orders, rules and regulations that are applicable to such Employee Plan; (i) Each of the Company at and its Subsidiaries is in compliance with the ~~date~~ provisions of all applicable federal, provincial, local and other laws and regulations respecting employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to do so would not, individually or in the aggregate, have a Material Adverse Effect; (ii) no collective labor dispute, grievance, arbitration or legal proceeding is ongoing, pending or, to the knowledge of the ~~Final Prospectus~~Company, threatened and no individual labor dispute, grievance, arbitration or legal proceeding is ongoing, pending or, to the knowledge of the Company, threatened with any employee of the Company or any of its Subsidiaries that would be have a ~~significant acquisition for~~ Material Adverse Effect, and, to the puknowledge of the Company, no such collective labor dispute, grievance, arbitration or legal proceeding has occurred during the past year; and (iii) except as disclosed in the Offering Documents or as required by applicable law, no union has been accredited or otherwise designated to represent any employees of the Company or any of its Subsidiaries and, to the knowledge of the Company, no accreditation request or other representation

Appears in 1 contract

Sources: Underwriting Agreement (Boyd Group Services Inc.)

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriter, and acknowledges that the ~~Agents are~~ Underwriter is relying upon such representations and warranties in purchasing the ~~offer and sale of the Offered Shares~~Securities, that: 6.1 the Company is a “foreign private issuer” (aas defined in Rule 405 under the 1933 Act) and is entitled to use Form F-10 under the 1933 Act to register the Offering under the 1933 Act. The Company has prepared and filed with the SEC an appointment of agent for service of process upon the Company on Form F-X in conjunction with the filing of the Registration Statement. The Registration Statement and the Form F-X conform, and any further amendments to the Registration Statement or the Form F-X will conform, in all material respects to the requirements of the 1933 Act; 6.2 since the respective dates as of which information is given in the Offering Documents and except as otherwise disclosed in the Offering Documents, (i) there has been no Material Adverse Change; (ii) there have been no transactions entered into by the Company or any of the Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and ~~RM have~~ the Subsidiaries taken as a whole; and (iii) other than as disclosed in the Offering Documents and except for any dividend or distribution declared, paid or made to the Company or any Subsidiaries, there has been ~~duly~~ no dividend or distribution of any kind declared, paid or made by the Company or any of the Subsidiaries on any class of its shares; 6.3 the Company has been incorporated and is existing as a corporation and in good standing under the federal laws of Canada, has the corporate power and authority to own, lease and operate its properties and assets (including licenses and other similar rights) and to conduct its business as described in each Offering Document and is registered to transact business and is in good standing under the laws of all jurisdictions in which its business is carried on or ~~organized and are validly~~ in which it owns or leases properties except where the failure to be so registered or in good standing would not result in a Material Adverse Effect; 6.4 each of the Material Subsidiaries has been incorporated (or formed, if it is not a corporation), is existing and in good standing under the laws of ~~the~~ its jurisdiction of ~~their~~ incorporation ~~and have all requisite corporate capacity~~or formation, as the case may be, has the power and authority to ~~carry on their business~~own, ~~as now conducted~~ lease and ~~as presently proposed to be conducted by them, and to own their~~ operate its properties and assets (including licenses and ~~conduct their business (~~other similar rights) and to ~~own their proposed properties and proposed assets and~~ conduct ~~their proposed business)~~ its business as described in each Offering Document and is registered to transact business and is in good standing under the ~~Prospectus; (b)~~ laws of all jurisdictions in which its business is carried on or in which it owns or leases properties, except where the failure to be so registered or in good standing would not result in Material Adverse Effect. All of the issued and outstanding shares of, or other equity interests in, RM each Material Subsidiary are owned directly or indirectly by the Company, have been duly and validly authorized and issued, and are owned directly or indirectly by the Company free and clear of any Lien other than: (i) those described in the Offering Documents; and (ii) Permitted Liens; 6.5 the Company’s authorized share capital consists of an unlimited number of multiple voting shares and subordinate voting shares, and an unlimited number of preferred shares, issuable in series, of which, as of April 16, 2024, an aggregate of 34,829,778 subordinate voting shares, 40,147,916 multiple voting shares and no preferred shares were issued and outstanding. No person, firm or company has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Company or any Material Subsidiary of any unissued shares of the Company or any Material Subsidiary or any right to convert any obligation into or exchange any shares of the Company or any Material Subsidiary, or for the purchase or acquisition of any material assets or material property of the Company or any Material Subsidiary, except as otherwise referred to in the Offering Documents. All of the issued and outstanding subordinate voting shares of the Company (including the Securities) have been duly and validly authorized and issued as fully paid and non-assessable, and ~~are owned by~~ none of the ~~Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge~~ outstanding subordinate voting shares of the Company ~~could have,~~ (including the ~~right to acquire~~ Securities) were issued in violation of the pre-emptive or similar rights of any ~~ownership interest in RM~~securityholder of the Company; ~~(c) immediately prior to~~ 6.6 in connection with the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the Final Prospectus, since December 31, 2017: (i) there has been no Material Adverse Change (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there has been no transaction entered into by the Company which is material to the Company; (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; (iv) there has not been any material change in the share capital, long-term debt, short-term debt, net current assets, net assets, financial condition or operations of the Company or any of the subsidiaries other than changes in the ordinary course of business; and (v) none of the Company or any of its subsidiaries has cancelled any debts or entitlements; (e) except where non-compliance does not have and would not reasonably be expected to have a Material Adverse EffectOffering, the Company has ~~conducted, is conducting and will conduct its business in compliance~~ complied with all requirements applicable ~~laws~~to it, ~~rules~~ and ~~regulations of each jurisdiction in which it carries~~ obtained all consents and waivers required to be obtained by it, on or prior to the date hereof under the amended and ~~will carry on its business and the Company has not received any notice of any alleged violation of any such laws~~restated registration rights agreements, ~~rules and regulations; (f)~~ dated May 29, 2013, between the Company, RM▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇., ▇▇▇▇▇▇ de dépôt et placement du Québec, Beaudier Inc. and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health 4338618 Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR Inc. (the ~~"Licence to Produce"~~“Registration Rights Agreement”); ~~(h)~~ 6.7 the Company ~~has filed~~is currently and, ~~declared~~as at the Closing Time, ~~obtained, maintained~~ will be directly or ~~submitted all reports, documents, forms, notices, applications, records, claims, submissions~~ indirectly the registered owner of 100% of the equity and ~~supplements or amendments as required under~~ voting interest in each of the ~~ACMPR and by Health Canada in respect of RM's application for the Licence to Produce~~Material Subsidiaries; ~~(i) neither~~ 6.8 other than the ~~Company~~Material Subsidiaries, ~~nor RM, nor~~ the Company does not have any ~~other~~ subsidiary whose total assets represent more than 10% of the Company~~, to the knowledge of the Corporation, is required to obtain any permits~~ ’s consolidated assets or ~~licences other~~ whose sales and operating revenues represent more than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge 10% of the Company~~, in connection with its business is being conducted in accordance with best industry practices~~ ’s consolidated sales and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business of the Company and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiaries; (l) neither the Company, nor any of its subsidiaries, including RM, is involved operating revenues as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records of the Company and its subsidiary made available in connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of all material proceedings of the shareholdershereof, ~~the directors~~or, ~~all committees of the directors of each that have been minuted or resolved~~when taken as a group, ~~as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other~~ whose total assets represent more than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records 20% of the Company~~, whether~~ ’s consolidated assets or whose total sales and operating revenues represent more than 20% of ~~a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in~~ the ~~business in which~~ Company’s consolidated sales and operating revenues as at the ~~Company is engaged~~date hereof; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect with respect to the payment of any premium or compliance with any of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policy; (p) 6.9 the Company has ~~all~~ the requisite corporate power, authority and capacity ~~and authority~~ to enter into ~~and deliver~~ this Agreement and to perform its obligations hereunder (including the execution and delivery of the Preliminary Prospectus, the Final Prospectus and any Prospectus Amendments and the filing of each of them with the Securities Commissions in accordance with this Agreement) and thereunder, and hereunder; 6.10 this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms~~, subject to the general qualifications that: (i)~~ ; except as enforcement hereof and thereof may be limited by bankruptcy, insolvency, ~~moratorium~~reorganization, ~~reorganization~~ moratorium or ~~other~~ similar laws affecting ~~creditors'~~ the rights ~~generally; (ii)~~ of creditors generally and except as limited by the application of equitable ~~remedies, including~~ principles when equitable remedies are sought and subject to the ~~remedies~~ fact that rights of specific performance and injunctive relief, are available only in the discretion of the applicable court; (iii) the equitable or statutory powers of the courts in Canada having jurisdiction to stay proceedings before them and the execution of judgments; (iv) rights to indemnity and contribution ~~hereunder~~ may be limited under applicable law; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; and (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by ~~it may be limited under~~ applicable law; ~~(q)~~ 6.11 the form of the certificates representing the Securities have been duly approved and adopted by the Company ~~is not~~ and comply in ~~default or breach of,~~ all respects with the requirements of the CBCA and the ~~execution~~ TSX; 6.12 the issued and ~~delivery of,~~ outstanding subordinate voting shares of the Company are listed and posted for trading on the TSX and the ~~performance of~~ Nasdaq; 6.13 the rights, privileges, restrictions, conditions and ~~compliance with~~ other terms attaching to the ~~terms of~~subordinate voting shares, ~~this Agreement~~ the multiple voting shares and the ~~performance of any~~ preferred shares of the ~~transactions contemplated hereby by the Company, do not and will not result~~ Company conform in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Company, or any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Company is a party or by which it is bound, or any judgment, decree, law, order, statute, rule or regulation applicable all material respects to the ~~Company, which default or breach might reasonably be expected to result~~ respective descriptions thereof contained in ~~a Material Adverse Effect~~the Offering Documents; ~~(r)~~ 6.14 the Financial Statements contained in the Offering Documents have been prepared in conformity with ~~International Financial Reporting Standards~~ IFRS, consistently applied ~~on a consistent basis~~ throughout the periods ~~involved~~ involved, and ~~present fairly,~~ comply as to form in all material ~~respects: (i)~~ respects with the applicable accounting requirements of Canadian Securities Laws and the CBCA. Such Financial Statements present fairly in all material respects the financial ~~position~~ position, financial performance and ~~condition~~ cash flows of the Company as at the dates ~~thereof, the results of operations of the Company~~ and for the periods ~~then ended, and~~ of such Financial Statements. The other Financial Information included in the Offering Documents presents fairly in all material ~~assets~~respects the information shown therein and, ~~liabilities or obligations (absolute, accrued, contingent or otherwise) of the Company; and (ii) the revenue, royalties, operating expenses, and operating income of the assets of the Company,~~ other than as ~~the case may be; (s) the financial data under the heading "Selected Financial Information" contained~~ disclosed in the ~~summary of the Final Prospectus~~ Offering Documents, has been compiled on a basis consistent with that of the Financial Statements; 6.15 the Company’s inventory of products consists of items that are usable and saleable and work-in-progress, subject to any reserves reflected in the most recent Financial Statements contained in the Offering Documents, in each case, in the ordinary course of business or as otherwise would not result in a Material Adverse Effect; the Company owns such inventory free and clear of any Lien, other than (ti) those described in the Offering Documents including the Financial Statements contained therein; (ii) those that do not, individually or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of the Subsidiaries; and (iii) Permitted Liens; as of the date of the most recent consolidated balance sheet of the Company forming part of the Financial Statements contained in the Offering Documents, the values at which such inventory is carried on such balance sheet are in accordance with IFRS; 6.16 except as disclosed in the Offering Documents, including the Financial Statements contained therein, neither the Company nor any of the Subsidiaries has outstanding any debentures, notes, mortgages, or other indebtedness that is material to the Company and the Subsidiaries taken as a whole; 6.17 none of the Company or any Material Subsidiary has, or on the Closing Date will have, incurred any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that continue to be outstanding except: (i) as disclosed or contemplated in the Offering Documents including the Financial Statements contained therein; and (ii) as incurred in the ordinary course of business by the Company or any of the Subsidiaries and which do not have a Material Adverse Effect; 6.18 except as disclosed in the Offering Documents, including the Financial Statements contained therein, or which would not, individually or in the aggregate, result in a Material Adverse Effect, since January 31, 2024, (i) there has not been any change in the share capital, long-term debt, financial condition or operations of the Company or any of the Subsidiaries other than changes in the ordinary course of business; (ii) the business of the Company ~~will~~and the Subsidiaries has been carried on in the ordinary course; (iii) none of the property or assets of the Company or the Subsidiaries shown or reflected in the Financial Statements has been transferred, ~~following~~ assigned, sold, distributed, dividended or otherwise disposed of other than in the ~~Closing~~ordinary course of business; and (iv) none of the Company or any of the Subsidiaries has cancelled any material debts or entitlements other than in the ordinary course of business; 6.19 to the Company’s Knowledge, ~~maintain~~ Deloitte LLP is and was, during the periods covered by its reports, independent within the meaning of and as required by the 1933 Act, the Public Accounting Oversight Board and the Code of Ethics of the Ordre des comptables professionnels agréés du Québec and in accordance with applicable Canadian Securities Laws. There has not been any reportable event (within the meaning of Regulation 51-102 — Continuous Disclosure Obligations) with such auditors with respect to audits of the Company; 6.20 the Company maintains a system of internal control over financial reporting ~~that complies with the requirements of NI 52-109 and has been~~ which is designed ~~by the Company's Chief Executive Officer and Chief Financial Officer, or under their supervision,~~ to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with ~~International Financial Reporting Standards~~IFRS. ~~Other than as disclosed in the Responses, the~~ The Company is not aware of any material weaknesses in its internal control over financial ~~reporting. The~~ reporting which would be required to be disclosed in a certificate issued pursuant to Regulation 52-109 – Certification of Disclosure in Issuer’s Annual and Interim Filings, and the Company ~~will, following~~ and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the ~~Closing, maintain~~ recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; 6.21 the Company has devised and maintains a system of disclosure controls and procedures ~~that is~~ designed to ~~provide reasonable assurance~~ ensure that information required to be disclosed by ~~the Company~~ it under ~~Applicable~~ Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified ~~under Applicable~~ in the Canadian Securities ~~Laws~~ Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed ~~by the Company under Applicable Canadian Securities Laws is~~ will be accumulated and communicated to the ~~Company's management~~management of the Company in charge of disclosure matters, ~~including its Chief Executive Officer and Chief Financial Officer~~or persons performing similar functions, as ~~appropriate,~~ appropriate to allow timely decisions regarding required ~~disclosure~~disclosure and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effective; ~~(u)~~ 6.22 since the date of the most recent Financial Statements, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; 6.23 the Company is ~~the absolute legal and beneficial owner of~~in compliance, and ~~has good and marketable title to~~the Company’s directors or officers, in their capacities as such, are in compliance with all provisions of the ~~material properties~~ U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and ~~assets thereof, including~~ all rules and regulations promulgated thereunder or implementing the ~~RM Property, and no other property or assets~~ provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are ~~necessary for the conduct~~ then in effect as of the ~~business of the Company as currently conducted. Any~~ date hereof and ~~all of the agreements and other documents and instruments pursuant to~~ with which the Company ~~holds~~ is required to comply as of the ~~property~~ date hereof, and ~~assets thereof (including any interest in~~is actively taking steps, or ~~right~~ will actively take steps in a timely manner, to ~~earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments~~ enable it to be in ~~full force and~~ compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, ~~enforceable in accordance with~~ upon the ~~terms thereof~~effectiveness of such provisions, ~~and such properties and assets are in good standing under the~~ or which will become applicable ~~statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant~~ to ~~which~~ the Company ~~derives~~ at all times after the ~~interests thereof~~ date hereof; 6.24 except as disclosed in ~~such property are~~ the Offering Documents including the Financial Statements contained therein (and except, in ~~good standing. To~~ the ~~Company's knowledge, there is no claim nor the basis~~ case of ~~any claim that might or could materially adversely affect the right of the~~ defaults under Company ~~to use, transfer or otherwise exploit its assets~~ Contracts and Company Laws (~~including Intellectual Property~~as defined below), ~~none of~~ for such breaches, violations, conflicts or defaults that do not or would not, individually or in the ~~properties (or any interest in~~aggregate, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to have a Material Adverse Effect~~; (w) no proposed acquisition~~ ), neither the Company nor any of the Material Subsidiaries is in violation or default of, nor will the execution of this Agreement or the performance by the Company ~~has progressed to~~ or the Material Subsidiaries of their obligations hereunder, result in any breach or violation of, or be in conflict with, or constitute a default under, or create a state ~~where~~ of facts which after notice or lapse of time, or both, would constitute a ~~reasonable person would believe that~~ default under, or give rise to any right to accelerate the ~~likelihood~~ maturity or require the prepayment of any indebtedness under, or result in the imposition of any Lien upon any property or assets of the Company ~~completing~~ or any Material Subsidiary pursuant to (i) any term or provision of the ~~acquisition is high and that, if completed by~~ constating documents or by-laws of the Company or any Material Subsidiary or any resolution of the directors or shareholders of the Company or any Material Subsidiary; (ii) any contract (including the Material Contracts), mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease (including for real property) or licence to which the Company or any Material Subsidiary is a party or bound or to which any of the business, operations, property or assets of the Company or any Material Subsidiary is subject (collectively “Company Contracts”); or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any Material Subsidiary or their business, operations or assets, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such Material Subsidiary (collectively “Company Laws”); 6.25 all Material Contracts have been or will be prior to the Closing Date, made available to the Underwriter and all such Material Contracts are or will be at the ~~date~~ Closing valid and binding obligations of the ~~Final Prospectus~~Company, as applicable. Except as would be not result in a ~~significant acquisition for the pu~~Material Adverse Effect, (i) no event of default or event whi

Appears in 1 contract

Sources: Underwriting Agreement (BRP Inc.)

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriter, and acknowledges that the ~~Agents are~~ Underwriter is relying upon such representations and warranties in purchasing the ~~offer and sale of the Offered Shares~~Securities, that: 6.1 the Company is a “foreign private issuer” (aas defined in Rule 405 under the 1933 Act) and is entitled to use Form F-10 under the 1933 Act to register the Offering under the 1933 Act. The Company has prepared and filed with the SEC an appointment of agent for service of process upon the Company on Form F-X in conjunction with the filing of the Registration Statement. The Registration Statement and the Form F-X conform, and any further amendments to the Registration Statement or the Form F-X will conform, in all material respects to the requirements of the 1933 Act; 6.2 since the respective dates as of which information is given in the Offering Documents and except as otherwise disclosed in the Offering Documents, (i) there has been no Material Adverse Change; (ii) there have been no transactions entered into by the Company or any of the Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and ~~RM have~~ the Subsidiaries taken as a whole; and (iii) other than as disclosed in the Offering Documents and except for any dividend or distribution declared, paid or made to the Company or any Subsidiaries, there has been ~~duly~~ no dividend or distribution of any kind declared, paid or made by the Company or any of the Subsidiaries on any class of its shares; 6.3 the Company has been incorporated and is existing as a corporation and in good standing under the federal laws of Canada, has the corporate power and authority to own, lease and operate its properties and assets (including licenses and other similar rights) and to conduct its business as described in each Offering Document and is registered to transact business and is in good standing under the laws of all jurisdictions in which its business is carried on or ~~organized and are validly~~ in which it owns or leases properties except where the failure to be so registered or in good standing would not result in a Material Adverse Effect; 6.4 each of the Material Subsidiaries has been incorporated (or formed, if it is not a corporation), is existing and in good standing under the laws of ~~the~~ its jurisdiction of ~~their~~ incorporation ~~and have all requisite corporate capacity~~or formation, as the case may be, has the power and authority to ~~carry on their business~~own, ~~as now conducted~~ lease and ~~as presently proposed to be conducted by them, and to own their~~ operate its properties and assets (including licenses and ~~conduct their business (~~other similar rights) and to ~~own their proposed properties and proposed assets and~~ conduct ~~their proposed business)~~ its business as described in each Offering Document and is registered to transact business and is in good standing under the ~~Prospectus; (b)~~ laws of all jurisdictions in which its business is carried on or in which it owns or leases properties, except where the failure to be so registered or in good standing would not result in Material Adverse Effect. All of the issued and outstanding shares of, or other equity interests in, RM each Material Subsidiary are owned directly or indirectly by the Company, have been duly and validly authorized and issued, and are owned directly or indirectly by the Company free and clear of any Lien other than: (i) those described in the Offering Documents; and (ii) Permitted Liens; 6.5 the Company’s authorized share capital consists of an unlimited number of multiple voting shares and subordinate voting shares, and an unlimited number of preferred shares, issuable in series, of which, as of January 19, 2024, an aggregate of 3,045,525 subordinate voting shares, 42,319,344 multiple voting shares and no preferred shares were issued and outstanding. No person, firm or company has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Company or any Material Subsidiary of any unissued shares of the Company or any Material Subsidiary or any right to convert any obligation into or exchange any shares of the Company or any Material Subsidiary, or for the purchase or acquisition of any material assets or material property of the Company or any Material Subsidiary, except as otherwise referred to in the Offering Documents. All of the issued and outstanding subordinate voting shares of the Company (including the Securities) have been duly and validly authorized and issued as fully paid and non-assessable, and ~~are owned by~~ none of the ~~Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge~~ outstanding subordinate voting shares of the Company ~~could have,~~ (including the ~~right to acquire~~ Securities) were issued in violation of the pre-emptive or similar rights of any ~~ownership interest in RM~~securityholder of the Company; ~~(c) immediately prior to~~ 6.6 in connection with the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the Final Prospectus, since December 31, 2017: (i) there has been no Material Adverse Change (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there has been no transaction entered into by the Company which is material to the Company; (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; (iv) there has not been any material change in the share capital, long-term debt, short-term debt, net current assets, net assets, financial condition or operations of the Company or any of the subsidiaries other than changes in the ordinary course of business; and (v) none of the Company or any of its subsidiaries has cancelled any debts or entitlements; (e) except where non-compliance does not have and would not reasonably be expected to have a Material Adverse EffectOffering, the Company has ~~conducted, is conducting and will conduct its business in compliance~~ complied with all requirements applicable ~~laws~~to it, ~~rules~~ and ~~regulations of each jurisdiction in which it carries~~ obtained all consents and waivers required to be obtained by it, on or prior to the date hereof under the amended and ~~will carry on its business and the Company has not received any notice of any alleged violation of any such laws~~restated registration rights agreements, ~~rules and regulations; (f)~~ dated May 29, 2013, between the Company, RM▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇., ▇▇▇▇▇▇ de dépôt et placement du Québec, Beaudier Inc. and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health 4338618 Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR Inc. (the ~~"Licence to Produce"~~“Registration Rights Agreement”); ~~(h)~~ 6.7 the Company ~~has filed~~is currently and, ~~declared~~as at the Closing Time, ~~obtained, maintained~~ will be directly or ~~submitted all reports, documents, forms, notices, applications, records, claims, submissions~~ indirectly the registered owner of 100% of the equity and ~~supplements or amendments as required under~~ voting interest in each of the ~~ACMPR and by Health Canada in respect of RM's application for the Licence to Produce~~Material Subsidiaries; ~~(i) neither~~ 6.8 other than the ~~Company~~Material Subsidiaries, ~~nor RM, nor~~ the Company does not have any ~~other~~ subsidiary whose total assets represent more than 10% of the Company~~, to the knowledge of the Corporation, is required to obtain any permits~~ ’s consolidated assets or ~~licences other~~ whose sales and operating revenues represent more than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge 10% of the Company~~, in connection with its business is being conducted in accordance with best industry practices~~ ’s consolidated sales and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business of the Company and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiaries; (l) neither the Company, nor any of its subsidiaries, including RM, is involved operating revenues as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records of the Company and its subsidiary made available in connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of all material proceedings of the shareholdershereof, ~~the directors~~or, ~~all committees of the directors of each that have been minuted or resolved~~when taken as a group, ~~as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other~~ whose total assets represent more than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records 20% of the Company~~, whether~~ ’s consolidated assets or whose total sales and operating revenues represent more than 20% of ~~a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in~~ the ~~business in which~~ Company’s consolidated sales and operating revenues as at the ~~Company is engaged~~date hereof; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect with respect to the payment of any premium or compliance with any of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policy; (p) 6.9 the Company has ~~all~~ the requisite corporate power, authority and capacity ~~and authority~~ to enter into ~~and deliver~~ this Agreement and to perform its obligations hereunder (including the execution and delivery of the Preliminary Prospectus, the Final Prospectus and any Prospectus Amendments and the filing of each of them with the Securities Commissions in accordance with this Agreement) and thereunder, and hereunder; 6.10 this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms~~, subject to the general qualifications that: (i)~~ ; except as enforcement hereof and thereof may be limited by bankruptcy, insolvency, ~~moratorium~~reorganization, ~~reorganization~~ moratorium or ~~other~~ similar laws affecting ~~creditors'~~ the rights ~~generally; (ii)~~ of creditors generally and except as limited by the application of equitable ~~remedies, including~~ principles when equitable remedies are sought and subject to the ~~remedies~~ fact that rights of specific performance and injunctive relief, are available only in the discretion of the applicable court; (iii) the equitable or statutory powers of the courts in Canada having jurisdiction to stay proceedings before them and the execution of judgments; (iv) rights to indemnity and contribution ~~hereunder~~ may be limited under applicable law; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; and (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by ~~it may be limited under~~ applicable law; ~~(q)~~ 6.11 the form of the certificates representing the Securities have been duly approved and adopted by the Company ~~is not~~ and comply in ~~default or breach of,~~ all respects with the requirements of the CBCA and the ~~execution~~ TSX; 6.12 the issued and ~~delivery of,~~ outstanding subordinate voting shares of the Company are listed and posted for trading on the TSX and the ~~performance of~~ Nasdaq; 6.13 the rights, privileges, restrictions, conditions and ~~compliance with~~ other terms attaching to the ~~terms of~~subordinate voting shares, ~~this Agreement~~ the multiple voting shares and the ~~performance of any~~ preferred shares of the ~~transactions contemplated hereby by the Company, do not and will not result~~ Company conform in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Company, or any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Company is a party or by which it is bound, or any judgment, decree, law, order, statute, rule or regulation applicable all material respects to the ~~Company, which default or breach might reasonably be expected to result~~ respective descriptions thereof contained in ~~a Material Adverse Effect~~the Offering Documents; ~~(r)~~ 6.14 the Financial Statements contained in the Offering Documents have been prepared in conformity with ~~International Financial Reporting Standards~~ IFRS, consistently applied ~~on a consistent basis~~ throughout the periods ~~involved~~ involved, and ~~present fairly,~~ comply as to form in all material ~~respects: (i)~~ respects with the applicable accounting requirements of Canadian Securities Laws and the CBCA. Such Financial Statements present fairly in all material respects the financial ~~position~~ position, financial performance and ~~condition~~ cash flows of the Company as at the dates ~~thereof, the results of operations of the Company~~ and for the periods ~~then ended, and~~ of such Financial Statements. The other Financial Information included in the Offering Documents presents fairly in all material ~~assets~~respects the information shown therein and, ~~liabilities or obligations (absolute, accrued, contingent or otherwise) of the Company; and (ii) the revenue, royalties, operating expenses, and operating income of the assets of the Company,~~ other than as ~~the case may be; (s) the financial data under the heading "Selected Financial Information" contained~~ disclosed in the ~~summary of the Final Prospectus~~ Offering Documents, has been compiled on a basis consistent with that of the Financial Statements; 6.15 the Company’s inventory of products consists of items that are usable and saleable and work-in-progress, subject to any reserves reflected in the most recent Financial Statements contained in the Offering Documents, in each case, in the ordinary course of business or as otherwise would not result in a Material Adverse Effect; the Company owns such inventory free and clear of any Lien, other than (ti) those described in the Offering Documents including the Financial Statements contained therein; (ii) those that do not, individually or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of the Subsidiaries; and (iii) Permitted Liens; as of the date of the most recent consolidated balance sheet of the Company forming part of the Financial Statements contained in the Offering Documents, the values at which such inventory is carried on such balance sheet are in accordance with IFRS; 6.16 except as disclosed in the Offering Documents, including the Financial Statements contained therein, neither the Company nor any of the Subsidiaries has outstanding any debentures, notes, mortgages, or other indebtedness that is material to the Company and the Subsidiaries taken as a whole; 6.17 none of the Company or any Material Subsidiary has, or on the Closing Date will have, incurred any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that continue to be outstanding except: (i) as disclosed or contemplated in the Offering Documents including the Financial Statements contained therein; and (ii) as incurred in the ordinary course of business by the Company or any of the Subsidiaries and which do not have a Material Adverse Effect; 6.18 except as disclosed in the Offering Documents, including the Financial Statements contained therein, or which would not, individually or in the aggregate, result in a Material Adverse Effect, since October 31, 2023, (i) there has not been any change in the share capital, long-term debt, financial condition or operations of the Company or any of the Subsidiaries other than changes in the ordinary course of business; (ii) the business of the Company ~~will~~and the Subsidiaries has been carried on in the ordinary course; (iii) none of the property or assets of the Company or the Subsidiaries shown or reflected in the Financial Statements has been transferred, ~~following~~ assigned, sold, distributed, dividended or otherwise disposed of other than in the ~~Closing~~ordinary course of business; and (iv) none of the Company or any of the Subsidiaries has cancelled any material debts or entitlements other than in the ordinary course of business; 6.19 to the Company’s Knowledge, ~~maintain~~ Deloitte LLP is and was, during the periods covered by its reports, independent within the meaning of and as required by the 1933 Act, the Public Accounting Oversight Board and the Code of Ethics of the Ordre des comptables professionnels agréés du Québec and in accordance with applicable Canadian Securities Laws. There has not been any reportable event (within the meaning of Regulation 51-102 — Continuous Disclosure Obligations) with such auditors with respect to audits of the Company; 6.20 the Company maintains a system of internal control over financial reporting ~~that complies with the requirements of NI 52-109 and has been~~ which is designed ~~by the Company's Chief Executive Officer and Chief Financial Officer, or under their supervision,~~ to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with ~~International Financial Reporting Standards~~IFRS. ~~Other than as disclosed in the Responses, the~~ The Company is not aware of any material weaknesses in its internal control over financial ~~reporting. The~~ reporting which would be required to be disclosed in a certificate issued pursuant to Regulation 52-109 – Certification of Disclosure in Issuer’s Annual and Interim Filings, and the Company ~~will, following~~ and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the ~~Closing, maintain~~ recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. 6.21 the Company has devised and maintains a system of disclosure controls and procedures ~~that is~~ designed to ~~provide reasonable assurance~~ ensure that information required to be disclosed by ~~the Company~~ it under ~~Applicable~~ Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified ~~under Applicable~~ in the Canadian Securities ~~Laws~~ Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed ~~by the Company under Applicable Canadian Securities Laws is~~ will be accumulated and communicated to the ~~Company's management~~management of the Company in charge of disclosure matters, ~~including its Chief Executive Officer and Chief Financial Officer~~or persons performing similar functions, as ~~appropriate,~~ appropriate to allow timely decisions regarding required ~~disclosure~~disclosure and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effective; ~~(u)~~ 6.22 since the date of the most recent Financial Statements, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; 6.23 the Company is ~~the absolute legal and beneficial owner of~~in compliance, and ~~has good and marketable title to~~the Company’s directors or officers, in their capacities as such, are in compliance with all provisions of the ~~material properties~~ U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and ~~assets thereof, including~~ all rules and regulations promulgated thereunder or implementing the ~~RM Property, and no other property or assets~~ provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are ~~necessary for the conduct~~ then in effect as of the ~~business of the Company as currently conducted. Any~~ date hereof and ~~all of the agreements and other documents and instruments pursuant to~~ with which the Company ~~holds~~ is required to comply as of the ~~property~~ date hereof, and ~~assets thereof (including any interest in~~is actively taking steps, or ~~right~~ will actively take steps in a timely manner, to ~~earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments~~ enable it to be in ~~full force and~~ compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, ~~enforceable in accordance with~~ upon the ~~terms thereof~~effectiveness of such provisions, ~~and such properties and assets are in good standing under the~~ or which will become applicable ~~statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant~~ to ~~which~~ the Company ~~derives~~ at all times after the ~~interests thereof~~ date hereof; 6.24 except as disclosed in ~~such property are~~ the Offering Documents including the Financial Statements contained therein (and except, in ~~good standing. To~~ the ~~Company's knowledge, there is no claim nor the basis~~ case of ~~any claim that might or could materially adversely affect the right of the~~ defaults under Company ~~to use, transfer or otherwise exploit its assets~~ Contracts and Company Laws (~~including Intellectual Property~~as defined below), ~~none of~~ for such breaches, violations, conflicts or defaults that do not or would not, individually or in the ~~properties (or any interest in~~aggregate, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to have a Material Adverse Effect~~; (w) no proposed acquisition~~ ), neither the Company nor any of the Material Subsidiaries is in violation or default of, nor will the execution of this Agreement or the performance by the Company ~~has progressed to~~ or the Material Subsidiaries of their obligations hereunder, result in any breach or violation of, or be in conflict with, or constitute a default under, or create a state ~~where~~ of facts which after notice or lapse of time, or both, would constitute a ~~reasonable person would believe that~~ default under, or give rise to any right to accelerate the ~~likelihood~~ maturity or require the prepayment of any indebtedness under, or result in the imposition of any Lien upon any property or assets of the Company ~~completing~~ or any Material Subsidiary pursuant to (i) any term or provision of the ~~acquisition is high and that, if completed by~~ constating documents or by-laws of the Company or any Material Subsidiary or any resolution of the directors or shareholders of the Company or any Material Subsidiary; (ii) any contract (including the Material Contracts), mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease (including for real property) or licence to which the Company or any Material Subsidiary is a party or bound or to which any of the business, operations, property or assets of the Company or any Material Subsidiary is subject (collectively “Company Contracts”); or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any Material Subsidiary or their business, operations or assets, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such Material Subsidiary (collectively “Company Laws”); 6.25 all Material Contracts have been or will be prior to the Closing Date, made available to the Underwriter and all such Material Contracts are or will be at the ~~date~~ Closing valid and binding obligations of the ~~Final Prospectus~~Company, as applicable. Except as would be not result in a ~~significant acquisition for the pu~~Material Adverse Effect, (i) no event of default or event wh

Appears in 1 contract

Sources: Underwriting Agreement (BRP Inc.)

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriters, and acknowledges that the ~~Agents~~ Underwriters are relying upon such representations and warranties in ~~the offer and sale of~~ purchasing the Offered Shares, that: (a) the Company is a corporation incorporated and ~~RM have been duly incorporated or organized and are~~ validly existing ~~and~~ in good standing under the laws of the ~~jurisdiction~~ Province of ~~their incorporation~~ Ontario and ~~have~~ has all requisite corporate ~~capacity,~~ power and corporate authority and is duly qualified to carry on ~~their business,~~ its Business as now conducted in each of the jurisdictions it carries on business and ~~as presently proposed~~ to ~~be conducted by them~~own, lease or operate its Assets and Properties and to create, issue and sell the Offered Shares and neither the Company nor, to the knowledge of the Company, any other person, has taken any steps or proceedings, voluntary or otherwise, requiring or authorizing the Company’s dissolution or winding up, and the Company has all requisite corporate power and corporate authority to ~~own their properties and assets and conduct their business (~~enter into this Agreement and to ~~own their proposed properties and proposed assets and conduct their proposed business) as described in the Prospectus~~carry out its obligations hereunder; (b) Canopy Rivers is a corporation incorporated and validly existing in good standing under the laws of Canada and has all requisite corporate power and corporate authority and is duly qualified to carry on its Business as now conducted in each of the jurisdictions it carries on business and to own, lease and operate its Assets and Properties and neither the Company nor, to the knowledge of the Company, any other person, has taken any steps or proceedings, voluntary or otherwise, requiring or authorizing Canopy Rivers’ dissolution or winding up. All of the issued and outstanding shares ~~of, or other equity interests in, RM~~ Canopy Rivers are owned directly or indirectly by the Company, have been duly and validly authorized and issued, are fully paid and non-assessable, and are owned directly or indirectly by the Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge of the Company could have, the right to acquire any ownership interest in RM; (c) immediately prior to the Closing, Lien other than as those described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, Offering Documents and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the Final Prospectus, since December 31, 2017: (i) there has been no Material Adverse Change (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there has been no transaction entered into by the Company which is material to the Company; (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; (iv) there has not been any material change in the share capital, long-term debt, short-term debt, net current assets, net assets, financial condition or operations of the Company or any of the subsidiaries other than changes in the ordinary course of business; and (v) none of the Company or any of its subsidiaries has cancelled any debts or entitlements; (e) except where non-compliance does not have and those that would not reasonably be expected to have a Material Adverse Effect, the Company has conducted, is conducting and will conduct its business in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on and will carry on its business and the Company has not received any notice of any alleged violation of any such laws, rules and regulations; (fc) the Company, RM, and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR (the "Licence to Produce"); (h) the Company has filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required under the ACMPR and by Health Canada in respect of RM's application for the Licence to Produce; (i) neither the Company, nor RM, nor any other subsidiary of the Company, to the knowledge of the Corporation, is required to obtain any permits or licences other than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge of the Company, each Portfolio Company is an entity formed and validly existing in ~~connection with~~ good standing under the laws of its jurisdiction of formation and has all requisite power and authority and is duly qualified to carry on its business ~~is being~~ as now conducted in ~~accordance with best industry practices~~ each of the jurisdictions it carries on business and ~~all applicable laws~~ to own, lease or operate its Assets and ~~in compliance~~Properties. To the knowledge of the Company, ~~in all material respects~~no person has taken any steps or proceedings, ~~with all industry~~voluntary or otherwise, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respectsrequiring or authorizing any Portfolio Company’s dissolution or winding up; (kd) neither the Company (except for Canopy Rivers) nor Canopy Rivers has any direct or indirect subsidiaries; (e) neither the Company nor Canopy Rivers has any investment in any person or any agreement, option or commitment to acquire any such investment, except as disclosed in the Prospectus, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business of the Company and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the SubsidiariesOffering Documents; (lf) ~~neither the Company, nor any~~ each of its subsidiaries, including RM, is involved as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records of the Company and its subsidiary made available in connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of all material proceedings of the shareholders, the directors, all committees of the directors of each that have been minuted or resolved, as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records of the Company, whether of a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in the business in which the Company is engaged; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect with respect to the payment of any premium or compliance with any of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policy; (p) the Company has all requisite corporate power, capacity and authority to enter into and deliver this Agreement and to perform its obligations hereunder (including the execution and delivery of this Agreement, the performance by the Company of its obligations hereunder, the issue and sale of the Offered Shares and the consummation of the transactions contemplated herein do not and will not: (i) require any consent, approval, permit, authorization or filing except (x) the approval of the Company’s Board of Directors (which has been obtained with respect to the Preliminary ~~Prospectus,~~ Offering Documents and will be obtained for the Final ~~Prospectus~~ Offering Documents and any ~~Prospectus Amendments~~ Offering Document Amendment), (y) those which have been made or obtained under Canadian Securities Laws and (z) those required under Canadian Securities Laws which will be made or obtained prior to the ~~filing~~ Closing Time, or (ii) conflict with or result in a breach or violation of ~~each~~ any of ~~them with~~ the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both) (A) any statute, rule or regulation applicable to the Company or Canopy Rivers, including Canadian Securities ~~Commissions~~ Laws; (B) the constating documents, by-laws or resolutions of the Company and Canopy Rivers which are in ~~accordance with this Agreement~~effect at the date hereof; (C) any mortgage, note, indenture, contract, agreement, joint venture, partnership, instrument, lease or other document to which the Company or Canopy Rivers is a party or by which it is bound (including the Coattail Agreement and ~~thereunder~~any Contract between the Company or Canopy Rivers in respect of a Portfolio Company); or (D) any judgment, decree or order binding the Company, Canopy Rivers or their Assets and Properties; (g) this Agreement has been duly authorized and executed ~~and delivered~~ by the Company and constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, ~~subject to the general qualifications that: (i)~~ except as enforcement thereof may be limited by bankruptcy, insolvency, ~~moratorium~~reorganization, ~~reorganization or~~ moratorium and other laws relating to or affecting ~~creditors'~~ the rights ~~generally; (ii)~~ of creditors generally and except as limited by the application of equitable ~~remedies~~principals when equitable remedies are sought, ~~including~~ and by the ~~remedies of specific performance~~ fact that rights to indemnity, contribution and ~~injunctive relief~~waiver, ~~are available only in the discretion of the applicable court; (iii) the equitable or statutory powers of the courts in Canada having jurisdiction to stay proceedings before them~~ and the ~~execution of judgments; (iv) rights~~ ability to ~~indemnity and contribution hereunder~~ sever unenforceable terms, may be limited ~~under applicable law;~~ by Applicable Law; (vh) ~~enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting~~ the ~~enforceability or validity~~ authorized capital of the ~~remainder~~ Company consists of an unlimited number of multiple voting shares and an unlimited number of subordinated voting shares, of which, immediately prior to the Closing Time (prior to giving effect to the Offering), 36,468,318 multiple voting shares and 134,844,363 subordinated voting shares were issued and outstanding as fully paid and non-assessable shares in the capital of the Company. All of the issued and outstanding subordinated voting shares of the Company are listed and posted for trading on the TSXV. Canopy Growth is the sole registered owner of the multiple voting shares of the Company; (i) other than under this Agreement, in connection with the Concurrent Private Placement or pursuant to the investor rights agreement dated September 17, 2018 between the Company and Canopy Growth, no person has any agreement, option, right or privilege (whether pre-emptive, contractual or otherwise) capable of becoming an agreement for the purchase, acquisition, subscription for or issue of any of the unissued subordinated voting shares or other securities of the Company and, other than the options to purchase an aggregate of 12,452,290 subordinated voting shares and warrants exercisable to acquire an aggregate of 14,409,450 subordinated voting shares of the Company, no rights to acquire, or instruments convertible into or exchangeable for, any shares in the capital of the Company are outstanding; (j) the Firm Shares to be issued and sold by the Company pursuant to this Agreement will, upon receipt of payment therefor, be duly and validly issued by the Company as fully-paid and non-assessable shares at the Closing Time; (k) if the Underwriters exercise the Over-Allotment Option in accordance with Section 18(a), the Option Shares to be issued and sold by the Company pursuant to this Agreement will, upon receipt of payment therefor, be duly and validly issued by the Company as fully-paid and non-assessable shares at the applicable Option Closing Time; (l) the form and terms of the certificates for the subordinated voting shares have been approved and adopted by the directors of the Company and comply with all legal requirements (including, with respect to the Offered Shares, all requirements of the TSXV in relation thereto), and do not conflict with the articles or by-laws of the Company; (m) the Company is qualified under NI 44-101 to file a prospectus in the form of a short form prospectus for a distribution of the Offered Shares in each of the Qualifying Jurisdictions; (n) the Company is a reporting issuer or equivalent under the Canadian Securities Laws of each of the Qualifying Jurisdictions that recognizes such concept and is not on the list of defaulting reporting issuers or noted in default on the list of reporting issuers maintained by the relevant Canadian Securities Regulator in any Qualifying Jurisdiction in which such a list is maintained; (o) the Company has filed in a timely manner (and in the case of a filing prior to September 17, 2018, in all material respects) each document or report required to be filed by it pursuant to NI 51-102 and all other applicable Canadian Securities Laws and under the rules of the TSXV; each such document or report (including any financial statements) and any amendment thereto at the time it was filed conformed in all material respects to the requirements of such ~~document would be determined only in the discretion~~ Canadian Securities Laws and any applicable rules of the ~~court; and~~ TSXV; (vip) ~~enforceability~~ the Company has not filed a confidential material change report with any of the ~~provisions exculpating a party from liability or duty otherwise owed by it may be limited under applicable law~~Canadian Securities Regulators which remains confidential; (q) the Transfer Agent is the duly appointed registrar and transfer agent of the Company with respect to the subordinated voting shares of the Company; (r) the Company is not ~~in default~~ subject to the reporting requirements of Section 13(a) or ~~breach of~~15(d) of the 1934 Act; (s) no person has any option or any right or privilege capable of becoming such (i) under which Canopy Rivers is, ~~and~~ or may become, obligated to issue any of its securities, (ii) for the ~~execution and delivery of, and the performance of and compliance with the terms of, this Agreement and the performance~~ purchase of any securities (including any debt) of Canopy Rivers, or (iii) for the purchase of any material part of the ~~transactions contemplated hereby by~~ Business; (t) neither the Company nor Canopy Rivers is or, to the knowledge of the Company, ~~do not and will not result~~ is alleged to be (i) in ~~any breach of,~~ violation or ~~constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a~~ breach of ~~or constitute a default under,~~ any ~~term or~~ provision of ~~the~~ its articles, by-laws or ~~resolutions of the directors~~ other constating documents or ~~shareholders of the Company~~any Applicable Laws, including Canadian Securities Laws, or (ii) in default in the performance or observance of any ~~mortgage~~obligation, ~~note~~agreement, ~~indenture, contract, agreement (written~~ covenant or ~~oral), instrument, lease~~ condition contained in any Contract or ~~other document~~ permit to which ~~the Company~~ it is a party or by which it is bound or to which its property or assets are bound, except, in each case, for any such violations, breaches or ~~any judgment, decree, law, order, statute, rule or regulation applicable to the Company, which default or breach might~~ defaults that would not reasonably be ~~expected~~ expected, individually or in the aggregate, to ~~result in~~ have a Material Adverse ~~Effect~~Effect or materially adversely affect the rights of the Underwriters under this Agreement or the rights of holders of the Offered Shares; (ru) neither the Company nor Canopy Rivers has any outstanding Indebtedness or any liabilities or obligations whether accrued, absolute, contingent or otherwise as of the date hereof other than as disclosed in the most recent Financial Statements or in the Offering Documents; (v) the Financial Statements ~~have been prepared~~ (including the notes thereto) contained or incorporated by reference in ~~conformity with International~~ the Preliminary Prospectus, and the consolidated Financial ~~Reporting Standards applied on a consistent basis throughout~~ Statements (including the ~~periods involved and~~ notes thereto) that will be contained or incorporated by reference in the Final Prospectus will, (i) present fairly, in all material respects~~: (i)~~ , the financial ~~position~~ position, results of operations, cash flows and ~~condition~~ all of the ~~Company at~~ assets and liabilities of the Company, in each case on a consolidated basis, for the periods ended on, and as at, the dates ~~thereof~~indicated therein, (ii) have been prepared in accordance with IFRS consistently applied throughout the periods involved and applicable Canadian Securities Laws, (iii) are, in all material respects, consistent with the books and records of the Company, (iv) contain and reflect all material adjustments for the fair presentation of the results of operations and the financial position of the business of the Company for the periods ~~then ended, and all material assets, liabilities or obligations (absolute, accrued, contingent or otherwise) of the Company;~~ covered thereby and (ii) the revenue, royalties, operating expenses, and operating income of the assets of the Company, as the case may be; (s) the financial data under the heading "Selected Financial Information" contained in the summary of the Final Prospectus has been compiled on a basis consistent with that of the Financial Statements; (t) the Company will, following the Closing, maintain a system of internal control over financial reporting that complies with the requirements of NI 52-109 and has been designed by the Company's Chief Executive Officer and Chief Financial Officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with International Financial Reporting Standards. Other than as disclosed in the Responses, the Company is not aware of any material weaknesses in its internal control over financial reporting. The Company will, following the Closing, maintain a system of disclosure controls and procedures that is designed to provide reasonable assurance that information required to be disclosed by the Company under Applicable Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified under Applicable Canadian Securities Laws and to ensure that information required to be disclosed by the Company under Applicable Canadian Securities Laws is accumulated and communicated to the Company's management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure; (u) the Company is the absolute legal and beneficial owner of, and has good and marketable title to, all of the material properties and assets thereof, including the RM Property, and no other property or assets are necessary for the conduct of the business of the Company as currently conducted. Any and all of the agreements and other documents and instruments pursuant to which the Company holds the property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance with the terms thereof, and such properties and assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant to which the Company derives the interests thereof in such property are in good standing. To the Company's knowledge, there is no claim nor the basis of any claim that might or could materially adversely affect the right of the Company to use, transfer or otherwise exploit its assets (including Intellectual Property), none of the properties (or any interest in, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to have a Material Adverse Effect; (w) no proposed acquisition by the Company has progressed to a state where a reasonable person would believe that the likelihood of the Company completing the acquisition is high and that, if completed by the Company at the date of the Final Prospectus, would be a significant acquisition for the pu

Appears in 1 contract

Sources: Underwriting Agreement

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriter, and acknowledges that the ~~Agents are~~ Underwriter is relying upon such representations and warranties in purchasing the ~~offer and sale of the Offered Shares~~Securities, that: 6.1 the Company is a “foreign private issuer” (aas defined in Rule 405 under the 1933 Act) and is entitled to use Form F-10 under the 1933 Act to register the Offering under the 1933 Act. The Company has prepared and filed with the SEC an appointment of agent for service of process upon the Company on Form F-X in conjunction with the filing of the Registration Statement. The Registration Statement and the Form F-X conform, and any further amendments to the Registration Statement or the Form F-X will conform, in all material respects to the requirements of the 1933 Act; 6.2 since the respective dates as of which information is given in the Offering Documents and except as otherwise disclosed in the Offering Documents, (i) there has been no Material Adverse Change; (ii) there have been no transactions entered into by the Company or any of the Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and ~~RM have~~ the Subsidiaries taken as a whole; and (iii) other than as disclosed in the Offering Documents and except for any dividend or distribution declared, paid or made to the Company or any Subsidiaries, there has been ~~duly~~ no dividend or distribution of any kind declared, paid or made by the Company or any of the Subsidiaries on any class of its shares; 6.3 the Company has been incorporated and is existing as a corporation and in good standing under the federal laws of Canada, has the corporate power and authority to own, lease and operate its properties and assets (including licenses and other similar rights) and to conduct its business as described in each Offering Document and is registered to transact business and is in good standing under the laws of all jurisdictions in which its business is carried on or ~~organized and are validly~~ in which it owns or leases properties except where the failure to be so registered or in good standing would not result in a Material Adverse Effect; 6.4 each of the Material Subsidiaries has been incorporated (or formed, if it is not a corporation), is existing and in good standing under the laws of ~~the~~ its jurisdiction of ~~their~~ incorporation ~~and have all requisite corporate capacity~~or formation, as the case may be, has the power and authority to ~~carry on their business~~own, ~~as now conducted~~ lease and ~~as presently proposed to be conducted by them, and to own their~~ operate its properties and assets (including licenses and ~~conduct their business (~~other similar rights) and to ~~own their proposed properties and proposed assets and~~ conduct ~~their proposed business)~~ its business as described in each Offering Document and is registered to transact business and is in good standing under the ~~Prospectus; (b)~~ laws of all jurisdictions in which its business is carried on or in which it owns or leases properties, except where the failure to be so registered or in good standing would not result in Material Adverse Effect. All of the issued and outstanding shares of, or other equity interests in, RM each Material Subsidiary are owned directly or indirectly by the Company, have been duly and validly authorized and issued, and are owned directly or indirectly by the Company free and clear of any Lien other than: (i) those described in the Offering Documents; and (ii) Permitted Liens; 6.5 the Company’s authorized share capital consists of an unlimited number of multiple voting shares and subordinate voting shares, and an unlimited number of preferred shares, issuable in series, of which, as of September 9, 2025, an aggregate of 34,610,351 subordinate voting shares, 38,519,358 multiple voting shares and no preferred shares were issued and outstanding. No person, firm or company has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Company or any Material Subsidiary of any unissued shares of the Company or any Material Subsidiary or any right to convert any obligation into or exchange any shares of the Company or any Material Subsidiary, or for the purchase or acquisition of any material assets or material property of the Company or any Material Subsidiary, except as otherwise referred to in the Offering Documents. All of the issued and outstanding subordinate voting shares of the Company (including the Securities) have been duly and validly authorized and issued as fully paid and non-assessable, and ~~are owned by~~ none of the ~~Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge~~ outstanding subordinate voting shares of the Company ~~could have,~~ (including the ~~right to acquire~~ Securities) were issued in violation of the pre-emptive or similar rights of any ~~ownership interest in RM~~securityholder of the Company; ~~(c) immediately prior to~~ 6.6 in connection with the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the Final Prospectus, since December 31, 2017: (i) there has been no Material Adverse Change (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there has been no transaction entered into by the Company which is material to the Company; (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; (iv) there has not been any material change in the share capital, long-term debt, short-term debt, net current assets, net assets, financial condition or operations of the Company or any of the subsidiaries other than changes in the ordinary course of business; and (v) none of the Company or any of its subsidiaries has cancelled any debts or entitlements; (e) except where non-compliance does not have and would not reasonably be expected to have a Material Adverse EffectOffering, the Company has ~~conducted, is conducting and will conduct its business in compliance~~ complied with all requirements applicable ~~laws~~to it, ~~rules~~ and ~~regulations of each jurisdiction in which it carries~~ obtained all consents and waivers required to be obtained by it, on or prior to the date hereof under the amended and ~~will carry on its business and the Company has not received any notice of any alleged violation of any such laws~~restated registration rights agreements, ~~rules and regulations; (f)~~ dated May 29, 2013, between the Company, RM▇▇▇▇ Capital Luxembourg Investments S.à ▇.▇., ▇▇▇▇▇▇ de dépôt et placement du Québec, Beaudier Inc. and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health 4338618 Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR Inc. (the ~~"Licence to Produce"~~“Registration Rights Agreement”); ~~(h)~~ 6.7 the Company ~~has filed~~is currently and, ~~declared~~as at the Closing Time, ~~obtained, maintained~~ will be directly or ~~submitted all reports, documents, forms, notices, applications, records, claims, submissions~~ indirectly the registered owner of 100% of the equity and ~~supplements or amendments as required under~~ voting interest in each of the ~~ACMPR and by Health Canada in respect of RM's application for the Licence to Produce~~Material Subsidiaries; ~~(i) neither~~ 6.8 other than the ~~Company~~Material Subsidiaries, ~~nor RM, nor~~ the Company does not have any ~~other~~ subsidiary whose total assets represent more than 10% of the Company~~, to the knowledge of the Corporation, is required to obtain any permits~~ ’s consolidated assets or ~~licences other~~ whose sales and operating revenues represent more than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge 10% of the Company~~, in connection with its business is being conducted in accordance with best industry practices~~ ’s consolidated sales and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business of the Company and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiaries; (l) neither the Company, nor any of its subsidiaries, including RM, is involved operating revenues as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records of the Company and its subsidiary made available in connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of all material proceedings of the shareholdershereof, ~~the directors~~or, ~~all committees of the directors of each that have been minuted or resolved~~when taken as a group, ~~as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other~~ whose total assets represent more than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records 20% of the Company~~, whether~~ ’s consolidated assets or whose total sales and operating revenues represent more than 20% of ~~a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in~~ the ~~business in which~~ Company’s consolidated sales and operating revenues as at the ~~Company is engaged~~date hereof; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect with respect to the payment of any premium or compliance with any of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policy; (p) 6.9 the Company has ~~all~~ the requisite corporate power, authority and capacity ~~and authority~~ to enter into ~~and deliver~~ this Agreement and to perform its obligations hereunder (including the execution and delivery of the Preliminary Prospectus, the Final Prospectus and any Prospectus Amendments and the filing of each of them with the Securities Commissions in accordance with this Agreement) and thereunder, and hereunder; 6.10 this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms~~, subject to the general qualifications that: (i)~~ ; except as enforcement hereof and thereof may be limited by bankruptcy, insolvency, ~~moratorium~~reorganization, ~~reorganization~~ moratorium or ~~other~~ similar laws affecting ~~creditors'~~ the rights ~~generally; (ii)~~ of creditors generally and except as limited by the application of equitable ~~remedies, including~~ principles when equitable remedies are sought and subject to the ~~remedies~~ fact that rights of specific performance and injunctive relief, are available only in the discretion of the applicable court; (iii) the equitable or statutory powers of the courts in Canada having jurisdiction to stay proceedings before them and the execution of judgments; (iv) rights to indemnity and contribution ~~hereunder~~ may be limited under applicable law; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; and (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by ~~it may be limited under~~ applicable law; ~~(q)~~ 6.11 the form of the certificates representing the Securities have been duly approved and adopted by the Company ~~is not~~ and comply in ~~default or breach of,~~ all respects with the requirements of the CBCA and the ~~execution~~ TSX; 6.12 the issued and ~~delivery of,~~ outstanding subordinate voting shares of the Company are listed and posted for trading on the TSX and the ~~performance of~~ Nasdaq; 6.13 the rights, privileges, restrictions, conditions and ~~compliance with~~ other terms attaching to the ~~terms of~~subordinate voting shares, ~~this Agreement~~ the multiple voting shares and the ~~performance of any~~ preferred shares of the ~~transactions contemplated hereby by the Company, do not and will not result~~ Company conform in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Company, or any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Company is a party or by which it is bound, or any judgment, decree, law, order, statute, rule or regulation applicable all material respects to the ~~Company, which default or breach might reasonably be expected to result~~ respective descriptions thereof contained in ~~a Material Adverse Effect~~the Offering Documents; ~~(r)~~ 6.14 the Financial Statements contained in the Offering Documents have been prepared in conformity with ~~International Financial Reporting Standards~~ IFRS, consistently applied ~~on a consistent basis~~ throughout the periods ~~involved~~ involved, and ~~present fairly,~~ comply as to form in all material ~~respects: (i)~~ respects with the applicable accounting requirements of Canadian Securities Laws and the CBCA. Such Financial Statements present fairly in all material respects the financial ~~position~~ position, financial performance and ~~condition~~ cash flows of the Company as at the dates ~~thereof, the results of operations of the Company~~ and for the periods ~~then ended, and~~ of such Financial Statements. The other Financial Information included in the Offering Documents presents fairly in all material ~~assets~~respects the information shown therein and, ~~liabilities or obligations (absolute, accrued, contingent or otherwise) of the Company; and (ii) the revenue, royalties, operating expenses, and operating income of the assets of the Company,~~ other than as ~~the case may be; (s) the financial data under the heading "Selected Financial Information" contained~~ disclosed in the ~~summary of the Final Prospectus~~ Offering Documents, has been compiled on a basis consistent with that of the Financial Statements; 6.15 the Company’s inventory of products consists of items that are usable and saleable and work-in-progress, subject to any reserves reflected in the most recent Financial Statements contained in the Offering Documents, in each case, in the ordinary course of business or as otherwise would not result in a Material Adverse Effect; the Company owns such inventory free and clear of any Lien, other than (ti) those described in the Offering Documents including the Financial Statements contained therein; (ii) those that do not, individually or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of the Subsidiaries; and (iii) Permitted Liens; as of the date of the most recent consolidated balance sheet of the Company forming part of the Financial Statements contained in the Offering Documents, the values at which such inventory is carried on such balance sheet are in accordance with IFRS; 6.16 except as disclosed in the Offering Documents, including the Financial Statements contained therein, neither the Company nor any of the Subsidiaries has outstanding any debentures, notes, mortgages, or other indebtedness that is material to the Company and the Subsidiaries taken as a whole; 6.17 none of the Company or any Material Subsidiary has, or on the Closing Date will have, incurred any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that continue to be outstanding except: (i) as disclosed or contemplated in the Offering Documents including the Financial Statements contained therein; and (ii) as incurred in the ordinary course of business by the Company or any of the Subsidiaries and which do not have a Material Adverse Effect; 6.18 except as disclosed in the Offering Documents, including the Financial Statements contained therein, or which would not, individually or in the aggregate, result in a Material Adverse Effect, since July 31, 2025, (i) there has not been any change in the share capital, long-term debt, financial condition or operations of the Company or any of the Subsidiaries other than changes in the ordinary course of business; (ii) the business of the Company ~~will~~and the Subsidiaries has been carried on in the ordinary course; (iii) none of the property or assets of the Company or the Subsidiaries shown or reflected in the Financial Statements has been transferred, ~~following~~ assigned, sold, distributed, dividended or otherwise disposed of other than in the ~~Closing~~ordinary course of business; and (iv) none of the Company or any of the Subsidiaries has cancelled any material debts or entitlements other than in the ordinary course of business; 6.19 to the Company’s Knowledge, ~~maintain~~ Deloitte LLP is and was, during the periods covered by its reports, independent within the meaning of and as required by the 1933 Act, the Public Accounting Oversight Board and the Code of Ethics of the Ordre des comptables professionnels agréés du Québec and in accordance with applicable Canadian Securities Laws. There has not been any reportable event (within the meaning of Regulation 51-102 — Continuous Disclosure Obligations) with such auditors with respect to audits of the Company; 6.20 the Company maintains a system of internal control over financial reporting ~~that complies with the requirements of NI 52-109 and has been~~ which is designed ~~by the Company's Chief Executive Officer and Chief Financial Officer, or under their supervision,~~ to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with ~~International Financial Reporting Standards~~IFRS. ~~Other than as disclosed in the Responses, the~~ The Company is not aware of any material weaknesses in its internal control over financial ~~reporting. The~~ reporting which would be required to be disclosed in a certificate issued pursuant to Regulation 52-109 – Certification of Disclosure in Issuer’s Annual and Interim Filings, and the Company ~~will, following~~ and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the ~~Closing, maintain~~ recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; 6.21 the Company has devised and maintains a system of disclosure controls and procedures ~~that is~~ designed to ~~provide reasonable assurance~~ ensure that information required to be disclosed by ~~the Company~~ it under ~~Applicable~~ Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified ~~under Applicable~~ in the Canadian Securities ~~Laws~~ Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed ~~by the Company under Applicable Canadian Securities Laws is~~ will be accumulated and communicated to the ~~Company's management~~management of the Company in charge of disclosure matters, ~~including its Chief Executive Officer and Chief Financial Officer~~or persons performing similar functions, as ~~appropriate,~~ appropriate to allow timely decisions regarding required ~~disclosure~~disclosure and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effective; ~~(u)~~ 6.22 since the date of the most recent Financial Statements, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; 6.23 the Company is ~~the absolute legal and beneficial owner of~~in compliance, and ~~has good and marketable title to~~the Company’s directors or officers, in their capacities as such, are in compliance with all provisions of the ~~material properties~~ U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and ~~assets thereof, including~~ all rules and regulations promulgated thereunder or implementing the ~~RM Property, and no other property or assets~~ provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are ~~necessary for the conduct~~ then in effect as of the ~~business of the Company as currently conducted. Any~~ date hereof and ~~all of the agreements and other documents and instruments pursuant to~~ with which the Company ~~holds~~ is required to comply as of the ~~property~~ date hereof, and ~~assets thereof (including any interest in~~is actively taking steps, or ~~right~~ will actively take steps in a timely manner, to ~~earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments~~ enable it to be in ~~full force and~~ compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, ~~enforceable in accordance with~~ upon the ~~terms thereof~~effectiveness of such provisions, ~~and such properties and assets are in good standing under the~~ or which will become applicable ~~statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant~~ to ~~which~~ the Company ~~derives~~ at all times after the ~~interests thereof~~ date hereof; 6.24 except as disclosed in ~~such property are~~ the Offering Documents including the Financial Statements contained therein (and except, in ~~good standing. To~~ the ~~Company's knowledge, there is no claim nor the basis~~ case of ~~any claim that might or could materially adversely affect the right of the~~ defaults under Company ~~to use, transfer or otherwise exploit its assets~~ Contracts and Company Laws (~~including Intellectual Property~~as defined below), ~~none of~~ for such breaches, violations, conflicts or defaults that do not or would not, individually or in the ~~properties (or any interest in~~aggregate, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to have a Material Adverse Effect~~; (w) no proposed acquisition~~ ), neither the Company nor any of the Material Subsidiaries is in violation or default of, nor will the execution of this Agreement or the performance by the Company ~~has progressed to~~ or the Material Subsidiaries of their obligations hereunder, result in any breach or violation of, or be in conflict with, or constitute a default under, or create a state ~~where~~ of facts which after notice or lapse of time, or both, would constitute a ~~reasonable person would believe that~~ default under, or give rise to any right to accelerate the ~~likelihood~~ maturity or require the prepayment of any indebtedness under, or result in the imposition of any Lien upon any property or assets of the Company ~~completing~~ or any Material Subsidiary pursuant to (i) any term or provision of the ~~acquisition is high and that, if completed by~~ constating documents or by-laws of the Company or any Material Subsidiary or any resolution of the directors or shareholders of the Company or any Material Subsidiary; (ii) any contract (including the Material Contracts), mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease (including for real property) or licence to which the Company or any Material Subsidiary is a party or bound or to which any of the business, operations, property or assets of the Company or any Material Subsidiary is subject (collectively “Company Contracts”); or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any Material Subsidiary or their business, operations or assets, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such Material Subsidiary (collectively “Company Laws”); 6.25 all Material Contracts have been or will be prior to the Closing Date, made available to the Underwriter and all such Material Contracts are or will be at the ~~date~~ Closing valid and binding obligations of the ~~Final Prospectus~~Company, as applicable. Except as would be not result in a ~~significant acquisition for the pu~~Material Adverse Effect, (i) no event of default or event whi

Appears in 1 contract

Sources: Underwriting Agreement (BRP Inc.)

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriters, and acknowledges that the ~~Agents~~ Underwriters are relying upon such representations and warranties in purchasing the ~~offer and sale of the Offered Shares~~Securities, that: 8.1 since January 1, 2018, and except as otherwise disclosed in the Offering Documents, (ai) there has been no Material Adverse Change; (ii) there have been no transactions entered into by the Company or any of the Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and ~~RM have~~ the Subsidiaries taken as a whole; and (iii) other than as disclosed in the Offering Documents, there has been ~~duly~~ no dividend or distribution of any kind declared, paid or made by the Company or any of the Subsidiaries on any class of its shares; 8.2 the Company has been incorporated ~~or organized~~ and ~~are validly~~ is existing as a corporation and in good standing under the federal laws of Canada, has the corporate power and authority to own, lease and operate its properties and assets (including licenses and other similar rights) and to conduct its business as described in each Offering Document and any Offering Document Amendment, and is registered to transact business and is in good standing under the laws of all jurisdictions in which its business is carried on or in which it owns or leases properties except where the failure to be so registered or in good standing would not result in a Material Adverse Effect; 8.3 each of the Material Subsidiaries has been incorporated (or formed, if it is not a corporation), is existing and in good standing (where applicable) under the laws of its jurisdiction of ~~their~~ incorporation ~~and have all requisite corporate capacity~~or formation, as the case may be, has the power and authority to ~~carry on their business~~own, ~~as now conducted~~ lease and ~~as presently proposed to be conducted by them, and to own their~~ operate its properties and assets (including licenses and ~~conduct their business (~~other similar rights) and to ~~own their proposed properties and proposed assets and~~ conduct ~~their proposed business)~~ its business as described in each Offering Document and any Offering Document Amendment, and is registered to transact business and is in good standing (where applicable) under the ~~Prospectus;~~ laws of all jurisdictions in which its business is carried on or in which it owns or leases properties, except where the failure to be so registered or in good standing (bwhere applicable) ~~all~~ would not result in Material Adverse Effect. All of the issued and outstanding shares of, or other equity interests in, RM each Material Subsidiary are owned directly or indirectly by the Company, have been duly and validly authorized and issued, and are owned directly or indirectly by the Company free and clear of any Lien other than: (i) those described in the Offering Documents; and (ii) Permitted Liens; 8.4 at Closing, the Company will have an authorized share capital consisting of an unlimited number of common shares and Class B common shares, and an unlimited number of preferred shares, issuable in series, of which an aggregate of 13,200,000 common shares, 39,314,394 Class B common shares and no preferred shares will be issued and outstanding immediately prior to Closing. No person, firm or company has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Company or any Material Subsidiary of any unissued shares of the Company or any Material Subsidiary or any right to convert any obligation into or exchange any shares of the Company or any Material Subsidiary, or for the purchase or acquisition of any material assets or material property of the Company or any Material Subsidiary, except as otherwise referred to in the Offering Documents. All of the issued and outstanding common shares of the Company (including any Additional Shares) have been duly and validly authorized and issued as fully paid and non-assessable, and ~~are owned by~~ none of the ~~Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge~~ outstanding common shares of the Company ~~could have,~~ (including any Additional Shares) was issued in violation of the ~~right to acquire any ownership interest in RM; (c) immediately prior to the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with~~ pre- emptive or ~~a "holding corporation"~~ similar rights of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the Final Prospectus, since December 31, 2017: (i) there has been no Material Adverse Change (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there has been no transaction entered into by the Company which is material to the Company; (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; (iv) there has not been any material change in the share capital, long-term debt, short-term debt, net current assets, net assets, financial condition or operations of the Company or any of the subsidiaries other than changes in the ordinary course of business; and (v) none of the Company or any of its subsidiaries has cancelled any debts or entitlements; (e) except where non-compliance does not have and would not reasonably be expected to have a Material Adverse Effect, the Company has conducted, is conducting and will conduct its business in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on and will carry on its business and the Company has not received any notice of any alleged violation of any such laws, rules and regulations; (f) the Company, RM, and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business securityholder of the Company and ~~of RM; (ii)~~ the Offered Shares will be duly created prior to the Closing Time, and when issued, delivered and paid for in full, will be validly authorized and issued as fully paid and non-assessable and will not have not received any correspondence or notice from Health Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is been issued in violation of the ~~ACMPR~~ pre-emptive or similar rights of any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR (the "Licence to Produce"); (h) the Company has filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required under the ACMPR and by Health Canada in respect of RM's application for the Licence to Produce; (i) neither the Company, nor RM, nor any other subsidiary securityholder of the Company; 8.5 the Company is currently and, to as at the ~~knowledge~~ Closing Time, will be directly or indirectly the registered owner of 100% of the ~~Corporation, is required to obtain any permits or licences~~ equity and voting interest in each of the Material Subsidiaries; 8.6 other than the ~~License to Produce and licenses or permits expected to be obtained in the ordinary course of business~~Material Subsidiaries, ~~either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of~~ the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge does not have any subsidiary whose total assets represent more than 10% of the Company~~, in connection with its business is being conducted in accordance with best industry practices~~ ’s consolidated assets or whose sales and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business operating revenues represent more than 10% of the ~~Company~~ Company’s consolidated sales and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiaries; (l) neither the Company, nor any of its subsidiaries, including RM, is involved operating revenues as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records of the Company and its subsidiary made available in connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of all material proceedings of the shareholdershereof, ~~the directors~~or, ~~all committees of the directors of each that have been minuted or resolved~~when taken as a group, ~~as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other~~ whose total assets represent more than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records 20% of the Company~~, whether~~ ’s consolidated assets or whose total sales and operating revenues represent more than 20% of ~~a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in~~ the ~~business in which~~ Company’s consolidated sales and operating revenues as at the ~~Company is engaged~~date hereof; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect with respect to the payment of any premium or compliance with any of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policy; (p) 8.7 the Company has ~~all~~ the requisite corporate power, authority and capacity ~~and authority~~ to enter into ~~and deliver~~ this ~~Agreement~~ Agreement, the Pre-Closing Transactions and to perform its obligations hereunder (including the execution and delivery of the Preliminary Prospectus, the Final Prospectus and any Prospectus Amendments and the filing of each of them with the Securities Commissions in accordance with this Agreement) and thereunder~~, and~~ ; 8.8 this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms~~, subject to the general qualifications that: (i)~~ ; except as enforcement hereof and thereof may be limited by bankruptcy, insolvency, ~~moratorium~~reorganization, ~~reorganization~~ moratorium or ~~other~~ similar laws affecting ~~creditors'~~ the rights ~~generally; (ii)~~ of creditors generally and except as limited by the application of equitable ~~remedies, including~~ principles when equitable remedies are sought and subject to the ~~remedies~~ fact that rights of specific performance and injunctive relief, are available only in the discretion of the applicable court; (iii) the equitable or statutory powers of the courts in Canada having jurisdiction to stay proceedings before them and the execution of judgments; (iv) rights to indemnity and contribution ~~hereunder~~ may be limited under applicable law; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; and (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by ~~it may be limited under~~ applicable law; ~~(q)~~ 8.9 at Closing, the ~~Company is not in default or breach of~~Pre-Closing Transactions will have been duly authorized, executed and ~~the execution and delivery of, and the performance of and compliance with the terms of, this Agreement and the performance of any of the transactions contemplated hereby~~ delivered by the Company; 8.10 at Closing, ~~do not~~ the form of the certificates representing the Securities will have been duly approved and adopted by the Company and will comply in all respects with the requirements of the CBCA and the TSX and will not result in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any term or provision of conflict with the ~~articles,~~ Company’s by-laws or ~~resolutions~~ constating documents; 8.11 the rights, privileges, restrictions, conditions and other terms attaching to the common shares, the Class B common shares and the preferred shares of the ~~directors or shareholders of~~ Company will at Closing and the Company, or any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Company is a party or by which it is bound, or any judgment, decree, law, order, statute, rule or regulation applicable Option Closing conform in all material respects to the ~~Company, which default or breach might reasonably be expected to result~~ respective descriptions thereof contained in ~~a Material Adverse Effect~~the Offering Documents; ~~(r)~~ 8.12 the Financial Statements contained in the Offering Documents have been prepared in conformity with ~~International Financial Reporting Standards~~ IFRS, consistently applied ~~on a consistent basis~~ throughout the periods ~~involved~~ involved, and ~~present fairly,~~ comply as to form in all material ~~respects: (i)~~ respects with the applicable accounting requirements of Canadian Securities Laws and the CBCA. Such Financial Statements present fairly in all material respects the financial ~~position~~ position, financial performance and ~~condition~~ cash flows of the Company as at the dates ~~thereof, the results of operations of the Company~~ and for the periods ~~then ended, and~~ of such Financial Statements. The other Financial Information included in the Offering Documents presents fairly in all material ~~assets~~respects the information shown therein and, ~~liabilities or obligations (absolute, accrued, contingent or otherwise) of the Company; and (ii) the revenue, royalties, operating expenses, and operating income of the assets of the Company,~~ other than as ~~the case may be; (s) the financial data under the heading "Selected Financial Information" contained~~ disclosed in the ~~summary of the Final Prospectus~~ Offering Documents, has been compiled on a basis consistent with that of the Financial Statements; 8.13 the Company’s inventory of products consists of items that are usable and saleable and work-in-progress, subject to any reserves reflected in the most recent Financial Statements contained in the Offering Documents, in each case, in the ordinary course of business or as otherwise would not result in a Material Adverse Effect; the Company owns such inventory free and clear of any Lien, other than (ti) those described in the Offering Documents including the Financial Statements contained therein; (ii) those that do not, individually or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of the Subsidiaries; and (iii) Permitted Liens; as of the date of the most recent consolidated balance sheet of the Company forming part of the Financial Statements contained in the Offering Documents, the values at which such inventory is carried on such balance sheet are in accordance with IFRS; 8.14 except as disclosed in the Offering Documents, including the Financial Statements contained therein, neither the Company nor any of the Subsidiaries has outstanding any debentures, notes, mortgages, or other indebtedness that is material to the Company and the Subsidiaries taken as a whole; 8.15 none of the Company or any Material Subsidiary has, or on the Closing Date will have, incurred any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that continue to be outstanding, including as a result of the completion of the Pre-Closing Transactions, except: (i) as disclosed or contemplated in the Offering Documents including the Financial Statements contained therein; and (ii) as incurred in the ordinary course of business by the Company or any of the Subsidiaries and which do not have a Material Adverse Effect; 8.16 except as disclosed in the Offering Documents, including the Financial Statements contained therein, or which would not, individually or in the aggregate, result in a Material Adverse Effect, since January 1, 2018, (i) there has not been any change in the share capital, long-term debt, financial condition or operations of the Company or any of the Subsidiaries other than changes in the ordinary course of business; (ii) the business of the Company ~~will~~and the Subsidiaries has been carried on in the ordinary course; (iii) none of the property or assets of the Company or the Subsidiaries shown or reflected in the Financial Statements has been transferred, assigned, sold, distributed, dividended or otherwise disposed of other than in the ordinary course of business; and (iv) none of the Company or any of the Subsidiaries has cancelled any material debts or entitlements other than in the ordinary course of business; 8.17 KPMG is and was, during the periods covered by its reports, independent of the Company in accordance with the rules of professional conduct of Chartered Accountants Ireland and in accordance with applicable Canadian Securities Laws. There has not been any reportable event (within the meaning of Regulation 51-102 — Continuous Disclosure Obligations) with such auditor or any auditor of the Company or any of its Subsidiaries; 8.18 the Company maintains, or will maintain by the time following the ~~Closing~~Closing by which it will be required to do so under Canadian Securities Laws, ~~maintain~~ a system of internal control over financial reporting ~~that complies with the requirements of NI 52-109 and has been designed by the Company's Chief Executive Officer and Chief Financial Officer~~which is, or ~~under their supervision~~will be, designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with ~~International Financial Reporting Standards~~IFRS. ~~Other than as disclosed in the Responses, the~~ The Company is not aware of any material weaknesses in its internal control over financial ~~reporting~~reporting which would be required to be disclosed in a certificate issued pursuant to Regulation 52-109 – Certification of Disclosure in Issuer’s Annual and Interim Filings. The Company ~~will~~and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. 8.19 the Company has devised and maintained, or will have devised and will maintain by the time following the ~~Closing~~Closing by which it will be required to do so under Canadian Securities Laws, ~~maintain~~ a system of disclosure controls and procedures ~~that is~~ designed to ~~provide reasonable assurance~~ ensure that information required to be disclosed by ~~the Company~~ it under ~~Applicable~~ Canadian Securities Laws is and will be recorded, processed, summarized and reported within the time periods specified ~~under Applicable~~ in the Canadian Securities ~~Laws~~ Laws. Such disclosure controls and procedures will include controls and procedures designed to ensure that information required to be disclosed ~~by the Company under Applicable Canadian Securities Laws is~~ will be accumulated and communicated to the ~~Company's management~~management of the Company in charge of disclosure matters, ~~including its Chief Executive Officer and Chief Financial Officer~~or persons performing similar functions, as ~~appropriate,~~ appropriate to allow timely decisions regarding required ~~disclosure~~disclosure and such disclosure controls and procedures are or will be effective; ~~(u)~~ 8.20 since the ~~Company is the absolute legal and beneficial owner of, and has good and marketable title to, all~~ date of the ~~material properties and assets thereof~~most recent Financial Statements, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; 8.21 except as disclosed in the Offering Documents including the ~~RM Property~~Financial Statements contained therein (and except, in the case of defaults under Company Contracts and ~~no other property or assets are necessary for the conduct of the business of the~~ Company Laws (as currently conducted. Any and all of the agreements and other documents and instruments pursuant to which the Company holds the property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance with the terms thereof, and such properties and assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant to which the Company derives the interests thereof in such property are in good standing. To the Company's knowledge, there is no claim nor the basis of any claim that might or could materially adversely affect the right of the Company to use, transfer or otherwise exploit its assets (including Intellectual Propertydefined below), ~~none of~~ for such breaches, violations, conflicts or defaults that do not or would not, individually or in the ~~properties (or any interest in~~aggregate, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to have a Material Adverse Effect~~; (w) no proposed acquisition~~ ), neither the Company nor any of the Material Subsidiaries is in violation or default of, nor will the execution of this Agreement or the documents effecting the Pre-Closing Transactions or the performance by the Company ~~has progressed~~ or the Material Subsidiaries of their obligations hereunder and under such Pre-Closing Transactions, as applicable, including the issuance and sale of the Securities to be sold by the Company and the application of the net proceeds from the issue and sale of the Offered Shares and of the Additional Shares (if any) in accordance with the disclosure set out under the heading “Use of Proceeds” in the Offering Documents, result in any breach or violation of, or be in conflict with, or constitute a default under, or create a state ~~where~~ of facts which after notice or lapse of time, or both, would constitute a ~~reasonable person would believe that~~ default under, or give rise to any right to accelerate the ~~likelihood~~ maturity or require the prepayment of any indebtedness under, or result in the imposition of any Lien upon any property or assets of the Company ~~completing~~ or any Material Subsidiary pursuant to (i) any term or provision of the ~~acquisition~~ constating documents or by-laws of the Company or any Material Subsidiary or any resolution of the directors or shareholders of the Company or any Material Subsidiary; (ii) any contract (including the Material Contracts), mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease (including for real property) or licence to which the Company or any Material Subsidiary is ~~high~~ a party or bound or to which any of the business, operations, property or assets of the Company or any Material Subsidiary is subject (collectively “Company Contracts”); or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any Material Subsidiary or their business, operations or assets, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such Material Subsidiary (collectively “Company Laws”); 8.22 all Material Contracts have been or will be prior to the Closing Date, made available to the Underwriters and ~~that~~all such Material Contracts are or will be at the Closing (and the Option Closing Time, if ~~completed~~ applicable) valid and binding obligations of the Company, as applicable. Except as would not result in a Material Adverse Effect, (i) no event of default or event which after the giving of notice or the lapse of time or both would constitute an event of default, has occurred and is outstanding under any Material Contracts; (ii) none of the Company or any Material Subsidiary is aware of any default by the other parties to each Material Contract, and (iii) none of the Company at or any Material Subsidiary has waived any rights under any Material Contract; 8.23 no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the ~~date~~ use of the Preliminary Prospectus, the Amended Preliminary Prospectus, the Preliminary Offering Memorandum, the Final Prospectus, ~~would be a significant acquisition for~~ the puFinal Of

Appears in 1 contract

Sources: Underwriting Agreement

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the Agents, and acknowledges that the Agents are relying upon such representations and ~~warranties in~~ warranties, with the ~~offer and~~ exception that no representation or warranty is given with respect to U.S. federal laws, rules, regulations, policies, statutes, codes, orders, decrees, judgments, decisions, rulings, awards or guidelines which govern the production, trafficking, distribution, processing, extraction, sale of ~~the Offered Shares~~cannabis and related substances, that: (a) the Company and RM have been duly incorporated or organized and are validly existing and in good standing under the laws of the jurisdiction of their incorporation and have all requisite corporate capacity, power and authority to carry on their business, as now conducted and as presently proposed to be conducted by them, and to own their properties and assets and conduct their business (and to own their proposed properties and proposed assets and conduct their proposed business) as described in the Prospectus; (b) all of the issued and outstanding shares of, or other equity interests in, RM are owned directly or indirectly by the Company, have been duly and validly authorized and issued, are fully paid and non-assessable, and are owned by the Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge of the Company could have, the right to acquire any ownership interest in RM; (c) immediately prior to the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as otherwise disclosed in the ~~Final~~ Prospectus, since December 31, 2017: : (i) there has been no ~~Material Adverse Change~~ material change (actual, anticipated, contemplated or threatened, financial or otherwise)) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Company and its subsidiaries taken as a whole; (ii) there ~~has~~ have been no ~~transaction~~ transactions entered into by the Company or any of its subsidiaries which is are material with respect to the ~~Company~~Company and its subsidiaries taken as a whole, other than those in the ordinary course of business; and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; ; (ivb) ~~there~~ the Company has been duly incorporated and organized and is validly subsisting under the laws of the Province of British Columbia and is properly registered or licensed to carry on business under the laws of all jurisdictions in which its business is carried on, except where the failure to be so registered or licensed would not have a Material Adverse Effect; (c) Plus Nevada has been ~~any material change~~ duly incorporated under Chapter 78 of the Nevada Revised Statutes (United States) in the ~~share capital~~State of Nevada on April 11, ~~long-term debt~~2018, ~~short-term debt~~for the purpose of completing the Plus Merger and is validly subsisting under the laws of the State of Nevada and is properly registered or licensed to carry on business under the laws of all jurisdictions in which its business is carried on, ~~net current assets~~except where the failure to be so registered or licensed would not have a Material Adverse Effect; (d) ▇▇▇▇▇▇▇▇ has been duly formed under Chapter 17701 of the California Corporations Code (United States) in the State of California on July 13, ~~net assets, financial condition or operations~~ 2017 and has been operating the business of the Company ~~or any~~ since January 1, 2018 and is validly subsisting under the laws of the ~~subsidiaries other than changes~~ State of California and is properly registered or licensed to carry on business under the laws of all jurisdictions in which its business is carried on, except where the ~~ordinary course of business; and (v) none of the Company~~ failure to be so registered or ~~any of its subsidiaries has cancelled any debts or entitlements~~licensed would not have a Material Adverse Effect; (e) ~~except where non-compliance does not have and would not reasonably be expected~~ Plus Cooperative was duly dissolved on July 10, 2018 in accordance with applicable California law. Prior to ~~have a Material Adverse Effect~~such dissolution, ~~the Company has conducted, is conducting and will conduct~~ Plus Cooperative operated its business in compliance with California’s Compassionate Use Act of 1996 and all other applicable California laws, rules and regulations of each jurisdiction in which it carries on and will carry on its business and the Company has not received any notice of any alleged violation of any such laws, rules and regulations; (f) ~~the Company, RM,~~ other than Plus Nevada and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation▇▇▇▇▇▇▇▇, the ~~ACMPR and all similar~~ Company has no direct or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health Canada indirect subsidiaries or any ~~other Governmental Authority alleging~~ investment or ~~asserting material noncompliance with the ACMPR or~~ proposed investment in any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other actionPerson; (g) the Company has ~~provided~~ the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR (the "Licence to Produce"); (h) the Company has filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required under the ACMPR and by Health Canada in respect of RM's application for the Licence to Produce; (i) neither the Company, nor RM, nor any other subsidiary of the Company, to the knowledge of the Corporation, is required to obtain any permits or licences other than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge of the Company, in connection with its business is being conducted in accordance with best industry practices and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business of the Company and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiaries; (l) neither the Company, nor any of its subsidiaries, including RM, is involved as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records of the Company and its subsidiary made available in connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of all material proceedings of the shareholders, the directors, all committees of the directors of each that have been minuted or resolved, as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records of the Company, whether of a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in the business in which the Company is engaged; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect with respect to the payment of any premium or compliance with any of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policy; (p) the Company has all requisite corporate power, authority and capacity ~~and authority~~ to enter into ~~and deliver~~ this Agreement and to execute the Agents’ Warrant Certificates and to perform its obligations ~~hereunder~~ under this Agreement (including the execution and delivery of the Preliminary Prospectus, the Final ~~Prospectus~~ Offering Documents and any ~~Prospectus Amendments~~ Offering Document Amendment and the filing of each of them with the Securities ~~Commissions in accordance with this Agreement~~Commissions) and ~~thereunder,~~ the Agents’ Warrant Certificates and ~~this Agreement has been duly executed and delivered by~~ each of the Company and ~~constitutes a legal~~its subsidiaries has the requisite corporate power, ~~valid~~ authority and ~~binding obligation~~ capacity to own, lease and operate its property and assets and to carry on its business as currently carried on or as proposed to be carried on; (h) the authorized capital of the ~~Company, enforceable against the~~ Company ~~in accordance with its terms, subject to the general qualifications that~~includes: (i) ~~enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors' rights generally~~an unlimited number of Subordinate Voting Shares; (ii) ~~equitable remedies~~an unlimited number of Proportionate Voting Shares, (iii) an unlimited number of Class B Subordinate Voting Preferred Shares, including ~~the remedies~~ a maximum of ~~specific performance~~ 4,000,000 Series Seed Subordinate Voting Preferred Shares, a maximum of 2,173,913 Series Seed-1 Subordinate Voting Preferred Shares, a maximum of 3,500,000 Series A Subordinate Voting Preferred Shares, a maximum of 6,000,000 Series B-1 Subordinate Voting Preferred Shares, and ~~injunctive relief~~a maximum of 6,535,950 Series B-3 Subordinate Voting Preferred Shares; and (iv) an unlimited number of Class C Proportionate Voting Preferred Shares, ~~are available only in the discretion~~ including a maximum of ~~the applicable court~~15,000 Series B-2 Proportionate Voting Preferred Shares and a maximum of 65,360 Series B-3A Proportionate Voting Preferred Shares; (i) there are: (i) 100 Subordinate Voting Shares; (ii) 143,267.21 Proportionate Voting Shares; (iii) 17,738,798 Class B Subordinate Voting Preferred Shares (consisting of (a) 2,598,813 Series Seed Subordinate Voting Preferred Shares, (b) 2,173,913 Series Seed-1 Subordinate Voting Preferred Shares, (c) 2,435,951 Series A Subordinate Voting Preferred Shares, (d) 3,994,174 Series B-1 Subordinate Voting Preferred Shares and (e) 6,535,947 Series B-3 Subordinate Voting Preferred Shares); and (iv) 9,958.43 Class C Proportionate Voting Preferred Shares (consisting of 9,958.43 Series B-2 Proportionate Voting Preferred Shares) issued and outstanding; (j) the ~~equitable or statutory powers~~ rights, privileges, restrictions, conditions and other terms attaching to the Subordinate Voting Shares and the subordinate voting preferred shares and proportionate voting preferred shares of the ~~courts~~ Company will at Closing conform in ~~Canada having jurisdiction~~ all respects to ~~stay proceedings before them and~~ the ~~execution~~ respective descriptions thereof contained in the Final Offering Documents; (k) the authorized capital of ~~judgments~~the Plus Nevada includes: (i) 45,000,000 shares of Common Stock; (ii) 4,000,000 shares of Series Seed Preferred Stock; (iii) 2,173,913 shares of Series Seed-1 Preferred Stock; (iv) ~~rights to indemnity and contribution hereunder may be limited under applicable law~~3,500,000 shares of Series A Preferred Stock; (v) ~~enforceability~~ 6,000,000 shares of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the courtSeries B-1 Preferred Stock; and (vi) ~~enforceability~~ 1,500,000 shares of Series B-2 Preferred Stock; (l) the Company owns 14,201,761 shares of Common Stock of Plus Nevada, 2,598,813 shares of Series Seed Preferred Stock of Plus Nevada, 2,173,913 shares of Series Seed-1 Preferred Stock of Plus Nevada, 2,435,951 shares of Series A Preferred Stock of Plus Nevada, 3,994,174 shares of Series B-1 Preferred Stock of Plus Nevada and 995,843 shares of Series B-2 Preferred Stock of Plus Nevada, which represents all of the ~~provisions exculpating a party~~ outstanding shares of Plus Nevada; (m) the authorized capital of Carberry consists of membership interests, and Plus Nevada owns 100% of such membership interests of Carberry; (n) effective as of and immediately prior to the Offering, no person, firm or corporation has any agreement or option, or right or privilege (whether pre- emptive or contractual) capable of becoming an agreement or option, for the purchase from ~~liability~~ the Company of any unissued shares of the Company, other than (i) the 150,000 options to purchase Subordinate Voting Shares and 7,600 options to purchase Proportionate Voting Shares issued, or ~~duty otherwise owed by it may~~ conditionally issued as of the date of this Agreement pursuant to the Stock and Incentive Plan, and (ii) the B-1 Warrants, B-2 Warrants and Seed Warrants; (o) there are no stock phantom equity arrangements or similar rights that will be ~~limited under applicable law~~triggered or vest upon the completion of or following the Offering; (p) the Stock and Incentive Plan complies in all material respects with the rules and policies of the CSE; (q) all of the issued and outstanding shares of the Company have been duly and validly authorized and issued and are fully paid and non-assessable shares of the Company, and none of the outstanding securities of the Company were issued in violation of any pre-emptive or similar rights of any securityholder of the Company; (r) the Company is the direct or indirect beneficial owner of all of the issued and outstanding shares in the capital of each of its subsidiaries, with good and valid title to all such shares, free and clear of all Liens and encumbrances; (s) the Company has full corporate power and authority to issue the Securities; (t) the Offered Shares have been duly authorized and, upon receipt of payment or other consideration therefor, the Offered Shares will be validly issued and will be fully paid and non-assessable shares of the Company; (u) the Agents’ Warrants have been authorized and allotted for issuance and the Agents’ Warrants will be duly and validly created, authorized and issued; (v) the Agents’ Shares have been duly and validly authorized and reserved for issuance and, upon due exercise of the Agents’ Warrants, will be validly issued as fully-paid and non-assessable shares of the Company and will not have been issued in violation of or be subject to any pre-emptive rights or contractual rights to purchase securities issued by the Company; (w) at all times prior to the expiry of the Agents’ Warrants, a sufficient number of Agents’ Shares shall be allocated and reserved for issuance upon due exercise of the Agents’ Warrants in accordance with their terms; (x) neither the Company nor any of its subsidiaries has incurred any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that continue to be outstanding except: (i) as disclosed or contemplated in the Prospectus; or (ii) as incurred in the ordinary course of business by the Company or its subsidiaries, as the case may be, and which do not have a Material Adverse Effect; (y) except as disclosed in the Prospectus, no acquisition has been made by the Company during its three most recently completed fiscal years that would be a significant acquisition for the purposes of Canadian Securities Laws, and no proposed acquisition by the Company has progressed to a state where a reasonable person would believe that the likelihood of the Company completing the acquisition is high and that, if completed by the Company at the date of the Prospectus, would be a significant acquisition for the purposes of Canadian Securities Laws, in each case, that would require the prescribed disclosure in the Prospectus pursuant to such laws; (z) the Company is not in default or breach of, and the execution and delivery of, and the performance of and compliance with the terms of, this Agreement and the performance of any of the transactions contemplated ~~hereby~~ thereby by the ~~Company~~Company (including the execution and delivery of the Preliminary Prospectus, the Final Offering Documents and any Offering Document Amendment and the filing of each of them with the Securities Commissions), do not and will not result in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default ~~under,~~ under any applicable laws or any term or provision of the ~~articles, by-laws~~ articles and notice of articles or resolutions of the directors or shareholders of the Company, or any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Company is a party or by which it is bound, or any judgment, decree, ~~law,~~ order, statute, rule or regulation applicable to the Company, which default or breach might reasonably be expected to ~~result in~~ have a Material Adverse Effect; (raa) this Agreement and the performance of the Company’s obligations under this Agreement (including the execution and delivery of the Preliminary Prospectus, the Final Offering Documents and any Offering Document Amendment and the filing of each of them with the Securities Commissions) have been duly authorized by all necessary corporate action, and this Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by the application of equitable principles when equitable remedies are sought and subject to the fact that rights of indemnity and contribution may be limited by applicable law; (bb) no approval, authorization, consent or other order of, and no filing, registration or recording with any Governmental Authority or other person is required of the Company in connection with the execution and delivery of or with the performance by the Company of its obligations under this Agreement, except as disclosed in the Prospectus or as required by Canadian Securities Laws with regard to the distribution of the Offered Shares, if any, in the Qualifying Canadian Jurisdictions; (cc) the Company is not aware of any pending change or contemplated change to any applicable law or regulation or governmental position that would have a Material Adverse Effect. The Company has not received notice or other communication from, and is not aware of any pending enforcement action being taken by, any United States Governmental Authority against the Company or its subsidiaries under the Controlled Substances Act of 1970; (dd) the Financial Statements contained in the Final Offering Documents have been prepared in conformity with International Financial Reporting ~~Standards~~ Standards, consistently applied ~~on a consistent basis~~ throughout the periods ~~involved~~ involved, and ~~present fairly,~~ comply as to form in all material ~~respects: (i)~~ respects with the applicable accounting requirements of Canadian Securities Laws and the BCBCA. Such Financial Statements present fairly in all material respects the financial ~~position~~ position, financial performance and ~~condition~~ cash flows of the Company as at the dates ~~thereof, the results of operations of the Company~~ and for the periods ~~then ended, and~~ of such Financial Statements. The other Financial Information included in the Final Offering Documents presents fairly in all material ~~assets~~respects the information shown therein and, ~~liabilities or obligations (absolute, accrued, contingent or otherwise)~~ other than those aspects of the ~~Company; and (ii)~~ non- International Financial Reporting Standards measures that are not derived from the ~~revenue~~Financial Statements, royalties, operating expenses, and operating income of the assets of the Company, as the case may be; (s) the financial data under the heading "Selected Financial Information" contained in the summary of the Final Prospectus has been compiled on a basis consistent with that of the Financial Statements. The Financial Statements, the related notes thereto and the other pro forma financial information included in the Final Offering Documents present fairly in all material respects the information set forth therein and have been prepared in accordance with the applicable requirements of Canadian Securities Laws with respect to pro forma financial information; the assumptions used in the preparation thereof are reasonable and are set forth in the Final Offering Documents; and the related pro forma adjustments are appropriate to give effect to the assumptions used in the preparation thereof and the transactions and circumstances referred to therein; (tee) the Company ~~will~~has devised and maintained, or will devise and maintain by the time following the Closing, ~~maintain~~ by which it will be required to do so under Canadian Securities Laws, a system of disclosure controls and procedures designed to ensure that information required to be disclosed by it under Canadian Securities Laws will be recorded, processed, summarized and reported within the time periods specified in the Canadian Securities Laws. Such disclosure controls and procedures will include controls and procedures designed to ensure that information required to be disclosed will be accumulated and communicated to the management of the Company, including the chief executive officer and the chief financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure and such disclosure controls and procedures are and will be effective; (ff) the Company and each of the subsidiaries has established and maintains, or will establish and maintain, by the time following the Closing by which it will be required to do so under Canadian Securities Laws, a system of internal accounting controls and internal control over financial reporting ~~that complies with~~ which is, and in the ~~requirements~~ case of ~~NI 52-109 and has been designed by~~ the ~~Company's Chief Executive Officer and Chief Financial Officer~~Company will be, ~~or under their supervision, to provide~~ effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with International Financial Reporting Standards~~. Other than as disclosed~~ ; (gg) since the date of the latest audited Financial Statements included in the ~~Responses~~Final Offering Documents, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the ~~Company is not aware of any material weaknesses in its~~ Company’s internal control over financial reporting. The Company will, following the Closing, maintain a system of disclosure controls and procedures that is designed to provide reasonable assurance that information required to be disclosed by the Company under Applicable Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified under Applicable Canadian Securities Laws and to ensure that information required to be disclosed by the Company under Applicable Canadian Securities Laws is accumulated and communicated to the Company's management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure; (uhh) except as disclosed in the ~~Company is the absolute legal and beneficial owner of, and has good and marketable title to, all of the material properties and assets thereof,~~ Final Offering Documents including the RM Property, and no other property or assets are necessary for the conduct of the business of the Company as currently conducted. Any and all of the agreements and other documents and instruments pursuant to which the Company holds the property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance with the terms thereof, and such properties and assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant to which the Company derives the interests thereof in such property are in good standing. To the Company's knowledge, there is no claim nor the basis of any claim that might or could materially adversely affect the right of the Company to use, transfer or otherwise exploit its assets (including Intellectual Property), none of the properties (or any interest in, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to have a Material Adverse Effect; (w) no proposed acquisition by the Company has progressed to a state where a reasonable person would believe that the likelihood of the Company completing the acquisition is high and that, if completed by the Company at the date of the Final Prospectus, would be a significant acquisition for the puFinancial Statements

Appears in 1 contract

Sources: Agency Agreement

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriter, and acknowledges that the ~~Agents are~~ Underwriter is relying upon such representations and warranties in purchasing the ~~offer and sale of the Offered Shares~~Securities, that: 6.1 the Company is a “foreign private issuer” (aas defined in Rule 405 under the ▇▇▇▇ ▇▇▇) and is entitled to use Form F-10 under the 1933 Act to register the Offering under the 1933 Act. The Company has prepared and filed with the SEC an appointment of agent for service of process upon the Company on Form F-X in conjunction with the filing of the Registration Statement. The Registration Statement and the Form F-X conform, and any further amendments to the Registration Statement or the Form F-X will conform, in all material respects to the requirements of the 1933 Act; 6.2 since the respective dates as of which information is given in the Offering Documents and except as otherwise disclosed in the Offering Documents, (i) there has been no Material Adverse Change; (ii) there have been no transactions entered into by the Company or any of the Subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and ~~RM have~~ the Subsidiaries taken as a whole; and (iii) other than as disclosed in the Offering Documents and except for any dividend or distribution declared, paid or made to the Company or any Subsidiaries, there has been ~~duly~~ no dividend or distribution of any kind declared, paid or made by the Company or any of the Subsidiaries on any class of its shares; 6.3 the Company has been incorporated and is existing as a corporation and in good standing under the federal laws of Canada, has the corporate power and authority to own, lease and operate its properties and assets (including licenses and other similar rights) and to conduct its business as described in each Offering Document and is registered to transact business and is in good standing under the laws of all jurisdictions in which its business is carried on or ~~organized and are validly~~ in which it owns or leases properties except where the failure to be so registered or in good standing would not result in a Material Adverse Effect; 6.4 each of the Material Subsidiaries has been incorporated (or formed, if it is not a corporation), is existing and in good standing under the laws of ~~the~~ its jurisdiction of ~~their~~ incorporation ~~and have all requisite corporate capacity~~or formation, as the case may be, has the power and authority to ~~carry on their business~~own, ~~as now conducted~~ lease and ~~as presently proposed to be conducted by them, and to own their~~ operate its properties and assets (including licenses and ~~conduct their business (~~other similar rights) and to ~~own their proposed properties and proposed assets and~~ conduct ~~their proposed business)~~ its business as described in each Offering Document and is registered to transact business and is in good standing under the ~~Prospectus; (b)~~ laws of all jurisdictions in which its business is carried on or in which it owns or leases properties, except where the failure to be so registered or in good standing would not result in Material Adverse Effect. All of the issued and outstanding shares of, or other equity interests in, RM each Material Subsidiary are owned directly or indirectly by the Company, have been duly and validly authorized and issued, and are owned directly or indirectly by the Company free and clear of any Lien other than: (i) those described in the Offering Documents; and (ii) Permitted Liens; 6.5 the Company’s authorized share capital consists of an unlimited number of multiple voting shares and subordinate voting shares, and an unlimited number of preferred shares, issuable in series, of which, as of October 14, 2020, an aggregate of 42,007,633 subordinate voting shares, 45,891,671 multiple voting shares and no preferred shares were issued and outstanding. No person, firm or company has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Company or any Material Subsidiary of any unissued shares of the Company or any Material Subsidiary or any right to convert any obligation into or exchange any shares of the Company or any Material Subsidiary, or for the purchase or acquisition of any material assets or material property of the Company or any Material Subsidiary, except as otherwise referred to in the Offering Documents. All of the issued and outstanding subordinate voting shares of the Company (including the Securities) have been duly and validly authorized and issued as fully paid and non-assessable, and ~~are owned by~~ none of the ~~Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge~~ outstanding subordinate voting shares of the Company ~~could have,~~ (including the ~~right to acquire~~ Securities) were issued in violation of the pre-emptive or similar rights of any ~~ownership interest in RM~~securityholder of the Company; ~~(c) immediately prior to~~ 6.6 in connection with the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the Final Prospectus, since December 31, 2017: (i) there has been no Material Adverse Change (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there has been no transaction entered into by the Company which is material to the Company; (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; (iv) there has not been any material change in the share capital, long-term debt, short-term debt, net current assets, net assets, financial condition or operations of the Company or any of the subsidiaries other than changes in the ordinary course of business; and (v) none of the Company or any of its subsidiaries has cancelled any debts or entitlements; (e) except where non-compliance does not have and would not reasonably be expected to have a Material Adverse EffectOffering, the Company has ~~conducted, is conducting and will conduct its business in compliance~~ complied with all requirements applicable ~~laws~~to it, ~~rules~~ and ~~regulations of each jurisdiction in which it carries~~ obtained all consents and waivers required to be obtained by it, on or prior to the date hereof under the amended and ~~will carry on its business and the Company has not received any notice of any alleged violation of any such laws~~restated registration rights agreements, ~~rules and regulations; (f)~~ dated May 29, 2013, between the Company, RM▇▇▇▇, ▇▇▇▇▇▇ de dépôt et placement du Québec, Beaudier Inc. and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health 4338618 Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR Inc. (the ~~"Licence to Produce"~~“Registration Rights Agreement”); ~~(h)~~ 6.7 the Company ~~has filed~~is currently and, ~~declared~~as at the Closing Time, ~~obtained, maintained~~ will be directly or ~~submitted all reports, documents, forms, notices, applications, records, claims, submissions~~ indirectly the registered owner of 100% of the equity and ~~supplements or amendments as required under~~ voting interest in each of the ~~ACMPR and by Health Canada in respect of RM's application for the Licence to Produce~~Material Subsidiaries; ~~(i) neither~~ 6.8 other than the ~~Company~~Material Subsidiaries, ~~nor RM, nor~~ the Company does not have any ~~other~~ subsidiary whose total assets represent more than 10% of the Company~~, to the knowledge of the Corporation, is required to obtain any permits~~ ’s consolidated assets or ~~licences other~~ whose sales and operating revenues represent more than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge 10% of the Company~~, in connection with its business is being conducted in accordance with best industry practices~~ ’s consolidated sales and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business of the Company and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiaries; (l) neither the Company, nor any of its subsidiaries, including RM, is involved operating revenues as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records of the Company and its subsidiary made available in connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of all material proceedings of the shareholdershereof, ~~the directors~~or, ~~all committees of the directors of each that have been minuted or resolved~~when taken as a group, ~~as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other~~ whose total assets represent more than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records 20% of the Company~~, whether~~ ’s consolidated assets or whose total sales and operating revenues represent more than 20% of ~~a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in~~ the ~~business in which~~ Company’s consolidated sales and operating revenues as at the ~~Company is engaged~~date hereof; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect with respect to the payment of any premium or compliance with any of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policy; (p) 6.9 the Company has ~~all~~ the requisite corporate power, authority and capacity ~~and authority~~ to enter into ~~and deliver~~ this Agreement and to perform its obligations hereunder (including the execution and delivery of the Preliminary Prospectus, the Final Prospectus and any Prospectus Amendments and the filing of each of them with the Securities Commissions in accordance with this Agreement) and thereunder, and hereunder; 6.10 this Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms~~, subject to the general qualifications that: (i)~~ ; except as enforcement hereof and thereof may be limited by bankruptcy, insolvency, ~~moratorium~~reorganization, ~~reorganization~~ moratorium or ~~other~~ similar laws affecting ~~creditors'~~ the rights ~~generally; (ii)~~ of creditors generally and except as limited by the application of equitable ~~remedies, including~~ principles when equitable remedies are sought and subject to the ~~remedies~~ fact that rights of specific performance and injunctive relief, are available only in the discretion of the applicable court; (iii) the equitable or statutory powers of the courts in Canada having jurisdiction to stay proceedings before them and the execution of judgments; (iv) rights to indemnity and contribution ~~hereunder~~ may be limited under applicable law; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; and (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by ~~it may be limited under~~ applicable law; ~~(q)~~ 6.11 the form of the certificates representing the Securities have been duly approved and adopted by the Company ~~is not~~ and comply in ~~default or breach of,~~ all respects with the requirements of the CBCA and the ~~execution~~ TSX; 6.12 the issued and ~~delivery of,~~ outstanding subordinate voting shares of the Company are listed and posted for trading on the TSX and the ~~performance of~~ Nasdaq; 6.13 the rights, privileges, restrictions, conditions and ~~compliance with~~ other terms attaching to the ~~terms of~~subordinate voting shares, ~~this Agreement~~ the multiple voting shares and the ~~performance of any~~ preferred shares of the ~~transactions contemplated hereby by the Company, do not and will not result~~ Company conform in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Company, or any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Company is a party or by which it is bound, or any judgment, decree, law, order, statute, rule or regulation applicable all material respects to the ~~Company, which default or breach might reasonably be expected to result~~ respective descriptions thereof contained in ~~a Material Adverse Effect~~the Offering Documents; ~~(r)~~ 6.14 the Financial Statements contained in the Offering Documents have been prepared in conformity with ~~International Financial Reporting Standards~~ IFRS, consistently applied ~~on a consistent basis~~ throughout the periods ~~involved~~ involved, and ~~present fairly,~~ comply as to form in all material ~~respects: (i)~~ respects with the applicable accounting requirements of Canadian Securities Laws and the CBCA. Such Financial Statements present fairly in all material respects the financial ~~position~~ position, financial performance and ~~condition~~ cash flows of the Company as at the dates ~~thereof, the results of operations of the Company~~ and for the periods ~~then ended, and~~ of such Financial Statements. The other Financial Information included in the Offering Documents presents fairly in all material ~~assets~~respects the information shown therein and, ~~liabilities or obligations (absolute, accrued, contingent or otherwise) of the Company; and (ii) the revenue, royalties, operating expenses, and operating income of the assets of the Company,~~ other than as ~~the case may be; (s) the financial data under the heading "Selected Financial Information" contained~~ disclosed in the ~~summary of the Final Prospectus~~ Offering Documents, has been compiled on a basis consistent with that of the Financial Statements; 6.15 the Company’s inventory of products consists of items that are usable and saleable and work-in-progress, subject to any reserves reflected in the most recent Financial Statements contained in the Offering Documents, in each case, in the ordinary course of business or as otherwise would not result in a Material Adverse Effect; the Company owns such inventory free and clear of any Lien, other than (ti) those described in the Offering Documents including the Financial Statements contained therein; (ii) those that do not, individually or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of the Subsidiaries; and (iii) Permitted Liens; as of the date of the most recent consolidated balance sheet of the Company forming part of the Financial Statements contained in the Offering Documents, the values at which such inventory is carried on such balance sheet are in accordance with IFRS; 6.16 except as disclosed in the Offering Documents, including the Financial Statements contained therein, neither the Company nor any of the Subsidiaries has outstanding any debentures, notes, mortgages, or other indebtedness that is material to the Company and the Subsidiaries taken as a whole; 6.17 none of the Company or any Material Subsidiary has, or on the Closing Date will have, incurred any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that continue to be outstanding except: (i) as disclosed or contemplated in the Offering Documents including the Financial Statements contained therein; and (ii) as incurred in the ordinary course of business by the Company or any of the Subsidiaries and which do not have a Material Adverse Effect; 6.18 except as disclosed in the Offering Documents, including the Financial Statements contained therein, or which would not, individually or in the aggregate, result in a Material Adverse Effect, since July 31, 2020, (i) there has not been any change in the share capital, long-term debt, financial condition or operations of the Company or any of the Subsidiaries other than changes in the ordinary course of business; (ii) the business of the Company ~~will~~and the Subsidiaries has been carried on in the ordinary course; (iii) none of the property or assets of the Company or the Subsidiaries shown or reflected in the Financial Statements has been transferred, ~~following~~ assigned, sold, distributed, dividended or otherwise disposed of other than in the ~~Closing~~ordinary course of business; and (iv) none of the Company or any of the Subsidiaries has cancelled any material debts or entitlements other than in the ordinary course of business; 6.19 to the Company’s Knowledge, ~~maintain~~ Deloitte LLP is and was, during the periods covered by its reports, independent within the meaning of and as required by the 1933 Act, the Public Accounting Oversight Board and the Code of Ethics of the Ordre des comptables professionnels agréés du Québec and in accordance with applicable Canadian Securities Laws. There has not been any reportable event (within the meaning of Regulation 51-102 — Continuous Disclosure Obligations) with such auditors with respect to audits of the Company; 6.20 the Company maintains a system of internal control over financial reporting ~~that complies with the requirements of NI 52-109 and has been~~ which is designed ~~by the Company's Chief Executive Officer and Chief Financial Officer, or under their supervision,~~ to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with ~~International Financial Reporting Standards~~IFRS. ~~Other than~~ Except as disclosed in the ~~Responses~~Offering Documents, the Company is not aware of any material weaknesses in its internal control over financial ~~reporting. The~~ reporting which would be required to be disclosed in a certificate issued pursuant to Regulation 52-109 – Certification of Disclosure in Issuer’s Annual and Interim Filings, and the Company ~~will, following~~ and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the ~~Closing, maintain~~ recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. 6.21 the Company has devised and maintains a system of disclosure controls and procedures ~~that is~~ designed to ~~provide reasonable assurance~~ ensure that information required to be disclosed by ~~the Company~~ it under ~~Applicable~~ Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified ~~under Applicable~~ in the Canadian Securities ~~Laws~~ Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed ~~by the Company under Applicable Canadian Securities Laws is~~ will be accumulated and communicated to the ~~Company's management~~management of the Company in charge of disclosure matters, ~~including its Chief Executive Officer and Chief Financial Officer~~or persons performing similar functions, as ~~appropriate,~~ appropriate to allow timely decisions regarding required ~~disclosure~~disclosure and, except as disclosed in the Offering Documents, such disclosure controls and procedures are effective; ~~(u)~~ 6.22 since the date of the most recent Financial Statements, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; 6.23 the Company is ~~the absolute legal and beneficial owner of~~in compliance, and ~~has good and marketable title to~~the Company’s directors or officers, in their capacities as such, are in compliance with all provisions of the ~~material properties~~ U.S. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and ~~assets thereof, including~~ all rules and regulations promulgated thereunder or implementing the ~~RM Property, and no other property or assets~~ provisions thereof (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) that are ~~necessary for the conduct~~ then in effect as of the ~~business of the Company as currently conducted. Any~~ date hereof and ~~all of the agreements and other documents and instruments pursuant to~~ with which the Company ~~holds~~ is required to comply as of the ~~property~~ date hereof, and ~~assets thereof (including any interest in~~is actively taking steps, or ~~right~~ will actively take steps in a timely manner, to ~~earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments~~ enable it to be in ~~full force and~~ compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, ~~enforceable in accordance with~~ upon the ~~terms thereof~~effectiveness of such provisions, ~~and such properties and assets are in good standing under the~~ or which will become applicable ~~statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant~~ to ~~which~~ the Company ~~derives~~ at all times after the ~~interests thereof~~ date hereof; 6.24 except as disclosed in ~~such property are~~ the Offering Documents including the Financial Statements contained therein (and except, in ~~good standing. To~~ the ~~Company's knowledge, there is no claim nor the basis~~ case of ~~any claim that might or could materially adversely affect the right of the~~ defaults under Company ~~to use, transfer or otherwise exploit its assets~~ Contracts and Company Laws (~~including Intellectual Property~~as defined below), ~~none of~~ for such breaches, violations, conflicts or defaults that do not or would not, individually or in the ~~properties (or any interest in~~aggregate, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to have a Material Adverse Effect~~; (w) no proposed acquisition~~ ), neither the Company nor any of the Material Subsidiaries is in violation or default of, nor will the execution of this Agreement or the performance by the Company ~~has progressed to~~ or the Material Subsidiaries of their obligations hereunder, result in any breach or violation of, or be in conflict with, or constitute a default under, or create a state ~~where~~ of facts which after notice or lapse of time, or both, would constitute a ~~reasonable person would believe that~~ default under, or give rise to any right to accelerate the ~~likelihood~~ maturity or require the prepayment of any indebtedness under, or result in the imposition of any Lien upon any property or assets of the Company ~~completing~~ or any Material Subsidiary pursuant to (i) any term or provision of the ~~acquisition is high and that, if completed by~~ constating documents or by-laws of the Company or any Material Subsidiary or any resolution of the directors or shareholders of the Company or any Material Subsidiary; (ii) any contract (including the Material Contracts), mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease (including for real property) or licence to which the Company or any Material Subsidiary is a party or bound or to which any of the business, operations, property or assets of the Company or any Material Subsidiary is subject (collectively “Company Contracts”); or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any Material Subsidiary or their business, operations or assets, of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such Material Subsidiary (collectively “Company Laws”); 6.25 all Material Contracts have been or will be prior to the Closing Date, made available to the Underwriter and all such Material Contracts are or will be at the ~~date~~ Closing valid and binding obligations of the ~~Final Prospectus~~Company, as applicable. Except as would be not result in a ~~significant acquisition for the pu~~Material Adverse Effect, (i) no event of default or eve

Appears in 1 contract

Sources: Underwriting Agreement (BRP Inc.)

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriters, and acknowledges that the ~~Agents~~ Underwriters are relying upon such representations and warranties in purchasing the ~~offer~~ Firm Shares and ~~sale~~ the Optional Shares, if any, that as of the ~~Offered Shares~~date hereof, ~~that~~as of the Closing Date and as of each Option Closing Date: (a) (i) the Company is a “reporting issuer” and has complied in all material respects with all Canadian Securities Laws required to be complied with by the Company to qualify the distribution of the Shares through registrants registered in the applicable categories under Canadian Securities Laws in each of the Canadian Qualifying Jurisdictions (except for the filing of the Canadian Final Prospectus); and (ii) the Company is a “foreign private issuer” (as defined in Rule 405 under the U.S. Securities Act) and meets the requirements to use Form F-10 under the U.S. Securities Act to register the Offering under the U.S. Securities Act; (b) each document filed or to be filed with the Canadian Securities Regulators (including the Incorporated Documents), when filed with the Canadian Securities Regulators, conformed in all material respects to the requirements of Canadian Securities Laws at the time of filing, and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (c) the Financial Statements and the related notes thereto included or incorporated by reference in each of the Time of Sale Prospectus and the Final Offering Documents (i) present fairly, in accordance with Applicable Securities Laws, the financial position of the Company and RM its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such Financial Statements have been prepared in conformity with International Financial Reporting Standards (as issued by the International Accounting Standards Board) (“IFRS”) applied on a consistent basis throughout the periods covered thereby and (ii) except as disclosed in each of the Time of Sale Prospectus and the Final Offering Documents, have been audited by independent public accountants within the meaning of Canadian Securities Laws and/or applicable U.S. Securities Laws, as applicable and the rules of the Canadian Institute of Chartered Accountants or the Public Company Accounting Oversight Board (United States), as applicable; and the other financial information included or incorporated by reference in each of the Time of Sale Prospectus and the Final Offering Documents has been derived from the accounting records of the Company and its subsidiaries and presents fairly the information shown thereby; (d) since the date of the most recent financial statements of the Company included or incorporated by reference in each of the Time of Sale Prospectus and the Final Offering Documents (i) there has not been any material change in the share capital or long-term debt of the Company and its subsidiaries, taken as a whole, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of shares, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, rights, assets, management, financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business that is material to the Company and its subsidiaries taken as a whole from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in the Offering Documents; (e) the Company and each of the material subsidiaries of the Company listed in Schedule D hereto (the “Material Subsidiaries”) have been duly ~~incorporated or~~ organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the ~~jurisdiction~~ conduct of their ~~incorporation~~ respective businesses requires such qualification, and have all ~~requisite corporate capacity,~~ power and authority necessary to ~~carry on~~ own or hold their ~~business~~respective properties and to conduct the businesses in which they are engaged, ~~as now conducted and as presently proposed~~ except where the failure to be ~~conducted by them~~so qualified, ~~and to own their properties and assets and conduct their business (and to own their proposed properties and proposed assets and conduct their proposed business) as described~~ in good standing or have such power or authority would not, individually or in the ~~Prospectus~~aggregate, have a Material Adverse Effect; (bf) no person has any agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Company of any unissued shares of the Company or its subsidiaries, except as disclosed in each of the Offering Documents or as otherwise disclosed in writing to the Underwriters, and none of such Common Shares of the Company have been issued in violation of the pre-emptive or similar rights of any securityholder of the Company or of any other person; (g) the Company has the capitalization as set forth in each of the Time of Sale Prospectus and the Final Offering Documents under the heading “Consolidated Capitalization”. As at May 23, 2023, the authorized share capital of the Company consists of an unlimited number of Common Shares of which 91,939,688 were issued and outstanding, all of which have been duly authorized and are validly issued, fully paid and non-assessable. All the ~~issued and~~ outstanding shares ~~of,~~ of capital stock or other equity interests ~~in, RM are owned directly or indirectly by~~ of each subsidiary of the ~~Company,~~ Company have been duly and validly authorized and issued, are fully paid and non-~~assessable~~assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares) and are owned directly or indirectly by the Company (with the exception of CFT S.p.A. (“CFT”), certain direct and indirect subsidiaries of CFT, certain direct subsidiaries of BioDot, Inc., and Industrial Automation Partners B.V.), free and clear of any Lien, except for Liens ~~or other adverse claims whatsoever and there are no contracts, agreements or other arrangements~~ pursuant to ~~which any person has, or to~~ the ~~knowledge of the Company could have, the right to acquire any ownership interest in RM~~Credit Facilities; (ch) ~~immediately prior to the Closing, other than as described in the Prospectus,~~ the Company ~~will have no subsidiaries~~has the full right, ~~nor will it~~ power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and all action required to be ~~affiliated with or a "holding corporation"~~ taken for the due and proper authorization, execution and delivery of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, this Agreement and the ~~Company will have no shareholdings in any other Company or business organization~~consummation of the transactions contemplated thereby has been duly and validly taken; (di) ~~except~~ the Shares have been or will be at their date of issue duly and validly authorized and, when issued or delivered in accordance with this Agreement at the Closing Date or the Option Closing Date, as ~~disclosed in~~ applicable, will be validly issued as fully paid and non-assessable shares of the ~~Final Prospectus~~Company; (j) this Agreement has been duly authorized, ~~since December 31, 2017:~~ executed and delivered by the Company; (k) neither the Company nor any of the Material Subsidiaries is (i) ~~there has been no Material Adverse Change (actual, anticipated, contemplated~~ in violation of its constating documents or ~~threatened, financial or otherwise)~~similar organizational documents; (ii) ~~there~~ in default, and no event has ~~been no transaction entered into by~~ occurred that, with notice or lapse of time or both, would constitute such a default, in the ~~Company which is material to the Company; (iii) there has been no dividend~~ due performance or ~~distribution~~ observance of any ~~kind declared~~term, ~~paid~~ covenant or ~~made by the Company on~~ condition contained in any ~~class~~ indenture, mortgage, deed of ~~its shares; (iv) there has not been any material change in the share capital~~trust, ~~long-term debt, short-term debt, net current assets, net assets, financial condition~~ loan agreement or ~~operations of~~ other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries ~~other than changes in the ordinary course of business; and (v) none~~ is bound or to which any property, right or asset of the Company or any of its subsidiaries ~~has cancelled~~ is subject or (iii) in violation of any ~~debts~~ law or ~~entitlements~~statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect; (el) the execution, delivery and performance by the Company of this Agreement and the performance by the Company of its obligations hereunder, and the issuance and sale of the Shares contemplated hereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the constating documents or similar organizational documents of the Company or any of the Material Subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, Lien, charge or encumbrance that would not, individually or in the aggregate, have a Material Adverse Effect; (m) no consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of the Agreement, the issuance and sale of the Shares and compliance by the Company with the terms hereof and the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and resale of the Shares by the Underwriters, and except, in each case, as have been or will be obtained or made prior to Closing; (n) except ~~where non-compliance does not have and would not~~ as described in the Offering Documents, there are no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Actions”) pending to which the Company or any of its subsidiaries is or may be a party or to which any property, right or asset of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect, the Company has conducted, is conducting and will conduct its business in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on and will carry on its business and the Company has not received any notice of any alleged violation of any such laws, rules and regulations; (f) the Company, RM, and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and ~~(iii) have not received notice of any pending or~~ no such Actions are threatened ~~claim~~or, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR (the "Licence to Produce"); (h) the Company has filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required under the ACMPR and by Health Canada in respect of RM's application for the Licence to Produce; (i) neither the Company, nor RM, nor any other subsidiary of the Company, to the knowledge of the Corporation, is required to obtain any permits or licences other than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge of the Company, in connection with its business is being conducted in accordance with best industry practices and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respectscontemplated by any governmental or regulatory authority or by others; (ko) ~~except as disclosed in the Prospectus~~Ernst & Young LLP, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business of the Company and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiaries; (l) neither the Company, nor any of its subsidiaries, including RM, is involved as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records who have certified certain financial statements of the Company and its ~~subsidiary made available in connection with the Agents' due diligence investigations~~ subsidiaries are true and complete copies thereof and contain copies of all material proceedings of the shareholders, the directors, all committees of the directors of each that have been minuted or resolved, as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records of the Company, whether of a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in the business in which the Company is engaged; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect independent public accountants with respect to the ~~payment of any premium or compliance with any~~ Company and its subsidiaries within the meaning of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any Rules of Professional Conduct of the ~~insurers regarding cancellation~~ Chartered Professional Accountants of ~~such insurance policy~~Ontario; (p) the Company ~~has~~ and its subsidiaries have good title to, or have valid rights to lease or otherwise use, all ~~requisite corporate power, capacity~~ items of real and ~~authority~~ personal property that are material to ~~enter into and deliver this Agreement and to perform its obligations hereunder (including~~ the ~~execution and delivery~~ respective businesses of the ~~Preliminary Prospectus~~Company and its subsidiaries, ~~the Final Prospectus~~ in each case free and ~~any Prospectus Amendments~~ clear of all liens, encumbrances, claims and ~~the filing~~ defects and imperfections of ~~each of them~~ title except those that (i) do not materially interfere with the ~~Securities Commissions in accordance with this Agreement)~~ use made and ~~thereunder, and this Agreement has been duly executed and delivered~~ proposed to be made of such property by the Company and ~~constitutes~~ its subsidiaries, (ii) could not reasonably be expected, individually or in the aggregate, to have a ~~legal, valid and binding obligation of~~ Material Adverse Effect or (iii) that secure the ~~Company, enforceable against the Company in accordance with its terms, subject to the general qualifications that:~~ Credit Facilities; (i) ~~enforcement may be limited by bankruptcy~~the Company and its subsidiaries own or have the right to use or can acquire on reasonable terms all patents, ~~insolvency~~patent applications, ~~moratorium~~trademarks, ~~reorganization~~ service marks, trade names, trademark registrations, service mark registrations, domain names and other source indicators, copyrights and copyrightable works, know-how, trade secrets, systems, procedures, proprietary or confidential information and all other ~~laws affecting creditors'~~ worldwide intellectual property, industrial property and proprietary rights ~~generally~~(collectively, “Intellectual Property”) used in the conduct of their respective businesses; (ii) ~~equitable remedies~~the Company and its subsidiaries’ conduct of their respective businesses does not, ~~including~~ to the ~~remedies~~ Company’s knowledge, infringe, misappropriate or otherwise violate any Intellectual Property of ~~specific performance and injunctive relief, are available only in the discretion of the applicable court~~any person; (iii) the ~~equitable or statutory powers~~ Company and its subsidiaries have not received any written notice of ~~the courts in Canada having jurisdiction~~ any claim relating to stay proceedings before them and the execution of judgments; (iv) rights to indemnity and contribution hereunder may be limited under applicable law; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only Intellectual Property, except, in the ~~discretion~~ case of ~~the court;~~ each of (i), (ii) and (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by it may be limited under applicable law; (q) the Company is not in default or breach of, and the execution and delivery of, and the performance of and compliance with the terms of, this Agreement and the performance of any of the transactions contemplated hereby by the Company, do not and will not result in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Company, or any mortgage, note, indenture, contract, agreement (written or oraliii), instrument, lease or other document to which the Company is a party or by which it is bound, or any judgment, decree, law, order, statute, rule or regulation applicable to the Company, which default or breach might reasonably be expected to result in as would not have a Material Adverse Effect; (r) the Financial Statements have been prepared in conformity with International Financial Reporting Standards applied on a consistent basis throughout the periods involved and present fairly, in all material respects: no (i) relationship, direct or indirect, exists between or among the ~~financial position~~ Company or any of its subsidiaries, on the one hand, and ~~condition~~ the directors, officers, shareholders or other affiliates of the Company at or any of its subsidiaries, on the ~~dates thereof, the results of operations of the Company for the periods then ended, and all material assets, liabilities~~ other; or ~~obligations (absolute, accrued, contingent or otherwise) of the Company; and~~ (ii) off balance sheet transactions involving the ~~revenue~~Company or any of its subsidiaries, ~~royalties~~that is required by the Canadian Securities Laws to be described in a prospectus to be filed with the Canadian Securities Regulators, ~~operating expenses, and operating income of~~ which is not described in the ~~assets of the Company, as the case may be~~Offering Documents; (s) the ~~financial data under~~ Company is not, and after giving effect to the ~~heading "Selected Financial Information" contained~~ offering and sale of the Shares and the application of the proceeds thereof as described in U.S. Final Prospectus will not be, required to register as an “investment company” as such term is defined in the ~~summary~~ Investment Company Act of ~~the Final Prospectus has been compiled on a basis consistent with that of the Financial Statements~~1940, as amended; (t) the Company ~~will~~and its subsidiaries have paid all federal, ~~following~~ provincial, state, local and foreign taxes and filed all tax returns required to be paid or filed through the ~~Closing, maintain a system of internal control over financial reporting that complies with the requirements of NI 52-109~~ date hereof; and has been designed by the Company's Chief Executive Officer and Chief Financial Officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with International Financial Reporting Standards. Other than except as otherwise disclosed in the Responses, the Company is not aware of any material weaknesses in its internal control over financial reporting. The Company will, following the Closing, maintain a system of disclosure controls and procedures that is designed to provide reasonable assurance that information required to be disclosed by the Company under Applicable Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified under Applicable Canadian Securities Laws and to ensure that information required to be disclosed by the Company under Applicable Canadian Securities Laws is accumulated and communicated to the Company's management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure; (u) the Company is the absolute legal and beneficial owner of, and has good and marketable title to, all of the material properties and assets thereof, including the RM Property, and no other property or assets are necessary for the conduct of the business of the Company as currently conducted. Any and all of the agreements and other documents and instruments pursuant to which the Company holds the property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance with the terms thereof, and such properties and assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant to which the Company derives the interests thereof in such property are in good standing. To the Company's knowledgeOffering Documents, there is no ~~claim nor the basis of any claim~~ tax deficiency that ~~might~~ has been, or could materially adversely affect the right of the Company to use, transfer or otherwise exploit its assets (including Intellectual Property), none of the properties (or any interest in, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties or assets, except where the failure to pay or file or where such deficiency would not, individually or in the aggregate, have a Material Adverse Effect; (wu) the Company and its subsidiaries possess all licenses, sub-licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the Time of Sale Prospectus and the Final Offering Documents, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in each of the Time of Sale Prospectus and the Final Offering Documents, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, sub-license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course, except as would not, individually or in the aggregate, have a Material Adverse Effect; (v) no ~~proposed acquisition~~ labor disturbance by ~~the Company has progressed to a state where a reasonable person would believe that the likelihood~~ or dispute with employees of the Company ~~completing~~ or any of its subsidiaries exists or, to the ~~acquisition~~ knowledge of the Company, is ~~high~~ contemplated or threatened and ~~that, if completed by~~ the Company at is not aware of any existing or imminent labor disturbance by, or dispute with, the ~~date~~ employees of any of the ~~Final Prospectus~~Company’s or any of the Company’s subsidiaries’ principal suppliers, contractors or customers, except, in each case, as would be not have a ~~significant acquisition for~~ Material Adverse Effect. The Company has not received any notice of cancellation or termination with respect to any collective bargaining agreement to which it is a party; (i) the puCompany and its subsidiaries (x) are in compliance with any and all applicable federal, provincial, state, local and foreign laws, rules, regulations, requirements, decisions and orders

Appears in 1 contract

Sources: Underwriting Agreement (ATS Corp /ATS)

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriters, and acknowledges that the ~~Agents~~ Underwriters are relying upon such representations and warranties in purchasing the ~~offer~~ Firm Shares and ~~sale~~ the Optional Shares, if any, that as of the ~~Offered Shares, that~~Applicable Time and as of the date hereof: (a) the Company ~~and RM have been duly incorporated or organized and are validly existing and~~ is a “foreign private issuer” (as defined in ~~good standing~~ Rule 405 under the ~~laws of~~ U.S. Securities Act) and meets the ~~jurisdiction of their incorporation and have all requisite corporate capacity, power and authority~~ requirements to ~~carry on their business, as now conducted and as presently proposed~~ use Form F-10 under the U.S. Securities Act to ~~be conducted by them, and to own their properties and assets and conduct their business (and to own their proposed properties and proposed assets and conduct their proposed business) as described in~~ register the ~~Prospectus~~Offering under the U.S. Securities Act; (b) all of the issued and outstanding shares of, or other equity interests in, RM are owned directly or indirectly by the Company, have been duly and validly authorized and issued, are fully paid and non-assessable, and are owned by the Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge of the Company could have, the right to acquire any ownership interest in RM; (c) immediately prior to the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the ~~Final Prospectus~~Offering Documents, since December 31, ~~2017~~2020: (i) there has been no Material Adverse Change ~~(actual~~with respect to the Company and its subsidiaries taken as a whole, ~~anticipated, contemplated or threatened, financial or otherwise);~~ (ii) there ~~has~~ have been no ~~transaction~~ transactions entered into by the Company or any of its subsidiaries which is are material with respect to the ~~Company;~~ Company and its subsidiaries taken as a whole, other than those in the ordinary course of business, and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; ; (ivc) ~~there has~~ the Company is a corporation existing and in good standing under the Canada Business Corporations Act and is properly registered or licensed to carry on business under the laws of all jurisdictions in which its business is carried on, except where the failure to be so registered or licensed would not ~~been any material change in~~ have a Material Adverse Effect; (d) each of the ~~share capital, long-term debt, short-term debt, net current assets, net assets, financial condition or operations~~ subsidiaries of the Company ~~or any of~~ is a corporation existing and in good standing under the ~~subsidiaries other than changes in the ordinary course of business; and (v) none of the Company or any~~ laws of its ~~subsidiaries has cancelled any debts~~ jurisdiction of formation and is properly registered or ~~entitlements~~licensed to carry on business under the laws of all jurisdictions in which its business is carried on, except where the failure to be so registered or licensed would not have a Material Adverse Effect; (e) ~~except where non-compliance does not have and would not reasonably be expected to have a Material Adverse Effect,~~ the Company has ~~conducted, is conducting and will conduct its business in compliance with all applicable laws, rules and regulations of each jurisdiction in which it carries on and will carry on its business and~~ the Company has not received any notice of any alleged violation of any such laws, rules and regulations; (f) the Company, RM, and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR (the "Licence to Produce"); (h) the Company has filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required under the ACMPR and by Health Canada in respect of RM's application for the Licence to Produce; (i) neither the Company, nor RM, nor any other subsidiary of the Company, to the knowledge of the Corporation, is required to obtain any permits or licences other than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge of the Company, in connection with its business is being conducted in accordance with best industry practices and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses, permits, registrations and qualifications in all jurisdictions in which it carries on its business which are necessary or desirable to carry on the business of the Company and of RM, as the case may be, as now conducted and as presently proposed to be conducted; (ii) all such licences, permits, registrations or qualifications are valid and existing and in good standing; (iii) all of such licenses, permits, registrations and qualifications and any related application materials and correspondence has been provided to the Agents; and (iv) the Company is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiaries; (l) neither the Company, nor any of its subsidiaries, including RM, is involved as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the minute books and corporate records of the Company and its subsidiary made available in connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of all material proceedings of the shareholders, the directors, all committees of the directors of each that have been minuted or resolved, as applicable, and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicable; (n) the books of account and other records of the Company, whether of a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices that are customary in the business in which the Company is engaged; (o) the Company's insurance policies are valid and enforceable and in full force and effect, are underwritten by unaffiliated and reputable insurers, are sufficient for all applicable requirements of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect with respect to the payment of any premium or compliance with any of the provisions contained in any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policy; (p) the Company has all requisite corporate power, authority and capacity ~~and authority~~ to ~~enter into~~ execute and deliver this Agreement and to perform its obligations ~~hereunder (including~~ hereunder, and to execute and file with the ~~execution~~ Canadian Securities Regulators and ~~delivery~~ the SEC the Offering Documents and the Offering Document Amendments, if any, in each case to the extent required to be so executed an filed, and each of the ~~Preliminary Prospectus~~Company and its subsidiaries has the requisite corporate power, authority and capacity to own, lease and operate its property and assets and to carry on its business as currently carried on and as proposed to be carried on; (f) as of October •, 2021 and prior to the Closing, the ~~Final Prospectus~~ Company’s authorized share capital consists of an unlimited number of Subordinate Voting Shares, an unlimited number of Multiple Voting Shares and an unlimited number of preferred shares, of which • Subordinate Voting Shares, • Multiple Voting Shares and no preferred shares were issued and outstanding. No person has any ~~Prospectus Amendments~~ agreement or option, or right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Company of any unissued shares of the Company or its subsidiaries, except as disclosed in the Offering Documents or as otherwise disclosed in writing to the Underwriters; (g) all of the issued and outstanding Participating Shares of the ~~filing~~ Company have been duly and validly authorized and issued and are fully paid and non-assessable shares of ~~each of them with~~ the ~~Securities Commissions in accordance with this Agreement) and thereunder~~Company, and ~~this Agreement has~~ none of such Participating Shares of the Company have been issued in violation of the pre-emptive or similar rights of any securityholder of the Company or of any other person; (h) the form of the certificates representing the Shares have been duly ~~executed~~ approved and ~~delivered~~ adopted by the Company and ~~constitutes a legal~~comply in all respects with the requirements of the Canada Business Corporations Act and the TSX; (i) the issued and outstanding Subordinate Voting Shares are listed for trading on the TSX; (j) all of the issued and outstanding shares or other equity interests in the subsidiaries of the Company (other than LoanPaymentPro, ~~valid~~ LLC and ~~binding obligation~~ SafeCharge Payments Mexico S.A. de C.V.) are 100% owned, directly or indirectly, by the Company (free and clear of all Liens other than liens granted in connection with the Credit Facilities); in addition, all of the issued and outstanding shares or other equity interests in the subsidiaries of the Company have been duly and validly authorized and issued by such subsidiaries and are fully paid and non-assessable shares or other equity interests of such subsidiaries; (k) the Company owns indirectly (i) 60% of the shares or other equity interests of LoanPaymentPro, LLC; (ii) 50.1% of the shares or other equity interests of SafeCharge Payments Mexico, S.A. de C.V.; and (iii) 9% of the shares or other equity interests of Yello Company Limited free and clear of all Liens other than Liens granted in connection with the Credit Facilities; (l) other than the shares or other equity interests in the subsidiaries of the Company, ~~enforceable against~~ in Visa Inc. and in Yello Company Limited, the Company does not have any equity interest, directly or indirectly, in accordance with its terms, subject to the general qualifications that: (i) enforcement may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors' rights generally; (ii) equitable remedies, including the remedies of specific performance and injunctive relief, are available only in the discretion of the applicable court; (iii) the equitable or statutory powers of the courts in Canada having jurisdiction to stay proceedings before them and the execution of judgments; (iv) rights to indemnity and contribution hereunder may be limited under applicable law; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; and (vi) enforceability of the provisions exculpating a party from liability or duty otherwise owed by it may be limited under applicable lawperson; (qA) the Company is not in default or breach of, and the execution and delivery of, and the performance of and compliance with the terms of, this Agreement and the performance of any of the transactions contemplated hereby by the Company, do not and will not result in any breach of, or constitute a default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under, any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Company, or any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Company is a party or by which it is bound, or any judgment, decree, law, order, statute, rule or regulation applicable to the Company, which default or breach might reasonably be expected to result in a Material Adverse Effect; (r) the Audited Financial Statements have been prepared in ~~conformity~~ accordance with International Financial Reporting Standards applied on a consistent basis throughout the periods involved and present ~~fairly,~~ fairly in all material ~~respects: (i)~~ respects the consolidated financial position ~~and condition~~ of the Company as at ~~the dates thereof~~December 31, 2020 and 2019, the ~~results of operations~~ consolidated loss, comprehensive loss and cash flows of the Company for the years ended December 31, 2020 and 2019 and the consolidated changes in equity of the Company for the years ended December 31, 2020 and 2019; (B) the Interim Financial Statements have been prepared in accordance with International Financial Reporting Standards applied on a consistent basis throughout the periods ~~then ended,~~ involved and present fairly in all material ~~assets, liabilities or obligations (absolute, accrued, contingent or otherwise)~~ respects the consolidated financial position of the ~~Company; and~~ Company as at June 30, 2021 and the consolidated profit or loss of the Company for the three and six month periods ended June 30, 2021 and 2020 and the consolidated changes in equity and cash flows of the Company for the three and six month periods ended June 30, 2021 and 2020 and (iiC) the ~~revenue, royalties, operating expenses,~~ consolidated financial information with respect to the Company included in the Time of Sale Prospectus and ~~operating income of~~ the ~~assets of the Company, as the case may be; (s) the financial data~~ Final Offering Documents under the heading ~~"Selected Financial Information" contained~~ “Consolidated Capitalization” presents fairly in all material respects the information shown therein and, other than as disclosed in the ~~summary~~ Time of Sale Prospectus and the Final ~~Prospectus~~ Offering Documents, has been compiled on a basis consistent with that of the Financial Statements; (tn) there are no business relationships, related-party transactions or off-balance sheet transactions involving the Company ~~will~~or any of its subsidiaries or any other person required to be described in the Offering Documents which have not been described therein as required under International Financial Reporting Standards or applicable Canadian Securities Laws; (o) all material accruals for unpaid vacation pay, ~~following~~ premiums for unemployment insurance, health premiums, pension plan premiums, accrued wages, salaries and commissions and Employee Plans payments of the ~~Closing~~Company and its subsidiaries have been recorded in conformity, maintain a system of internal control over financial reporting that complies with the requirements of NI 52-109 and has been designed by the Company's Chief Executive Officer and Chief Financial Officerin all material respects, ~~or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance~~ with International Financial Reporting ~~Standards. Other than~~ Standards and comply in all material respects as to the applicable accounting requirements of Canadian Securities Laws, and are reflected on the books and records of the Company and its subsidiaries, as applicable; (p) neither the Company nor any of its subsidiaries has incurred any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that continue to be outstanding except (i) as disclosed or contemplated in the ~~Responses~~Offering Documents, or (ii) as incurred in the ~~Company is not aware~~ ordinary course of any material weaknesses in its internal control over financial reporting. The Company will, following the Closing, maintain a system of disclosure controls and procedures that is designed to provide reasonable assurance that information required to be disclosed business by the Company under Applicable Canadian Securities Laws is recorded, processed, summarized and reported within the time periods specified under Applicable Canadian Securities Laws and to ensure that information required to be disclosed by the Company under Applicable Canadian Securities Laws is accumulated and communicated to the Company's management, including or its ~~Chief Executive Officer and Chief Financial Officer~~subsidiaries, as ~~appropriate, to allow timely decisions regarding required disclosure; (u)~~ the ~~Company is the absolute legal and beneficial owner of~~case may be, and has good and marketable title to, all of the material properties and assets thereof, including the RM Property, and no other property or assets are necessary for the conduct of the business of the Company as currently conducted. Any and all of the agreements and other documents and instruments pursuant to which the Company holds the property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance with the terms thereof, and such properties and assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant to which the Company derives the interests thereof in such property are in good standing. To the Company's knowledge, there is no claim nor the basis of any claim that might or could materially adversely affect the right of the Company to use, transfer or otherwise exploit its assets (including Intellectual Property), none of the properties (or any interest in, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has do not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done that would reasonably be expected to have a Material Adverse Effect; (wq) ~~no proposed acquisition~~ the Company is a reporting issuer or the equivalent in good standing in all of the Canadian Qualifying Jurisdictions under the Canadian Securities Laws and the Company is in compliance, in all material respects, with all of its applicable continuous disclosure obligations and timely disclosure obligations under the Canadian Securities Laws and the rules and regulations of the TSX; (r) the Company is not an “ineligible issuer” in connection with the Offering as defined in Rule 405 under the U.S. Securities Act; any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the U.S. Securities Act has been, or will be, filed with the SEC in accordance with the requirements of the U.S. Securities Act; each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the U.S. Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the U.S. Securities Act; except for the free writing prospectuses, if any, identified in Schedule B hereto, and electronic Road Shows, if any, each furnished to the Joint Active Bookrunners before first use, the Company has not prepared, used or referred to, and will not, without the prior consent of the Joint Active Bookrunners, prepare, use or refer to, any free writing prospectus; (s) the Company is qualified under NI 44-101 to file a prospectus in the form of a short form prospectus in each of the Canadian Qualifying Jurisdictions and is eligible to use the Shelf Procedures; (t) the Company has prepared and filed with the Canadian Securities Regulators in accordance with the Shelf Procedures, the Canadian Amended and Restated Base Prospectus and has obtained a receipt for the Canadian Amended and Restated Base Prospectus from the Autorité des marchés financiers for and on behalf of itself and each of the other Canadian Securities Regulators. The aggregate amount of all securities issued pursuant to the Canadian Amended and Restated Base Prospectus does not and, upon completion of the Offering, will not exceed $1,800,000,000, being the maximum allowable amount thereunder; (u) except as disclosed in the Offering Documents or the Financial Statements, neither the Company nor any of its subsidiaries (i) has made any acquisition that is a “significant acquisition” within the meaning of Canadian Securities Laws in its current financial year or prior financial years in respect of which historical and/or pro forma financial statements would be required to be included or incorporated by reference into the Offering Documents under applicable requirements of Canadian Securities Laws, or (ii) currently proposes to make an acquisition that has progressed to a state where a reasonable person would believe that the likelihood of the ~~Company completing~~ acquisition being completed is high, and that would be a “significant acquisition” within the ~~acquisition is high and that~~meaning of Canadian Securities Laws, if completed ~~by the Company at~~ as of the date of the ~~Final Prospectus~~Offering Documents, and in respect of which historical and/or pro forma financial statements would be required to be included or incorporated by reference into the Offering Documents under applicable requirements of Canadian Securities Laws; (v) the Company has established and maintains “disclosure controls and procedures” and “internal control over financial reporting” (each as defined in NI 52-109) as required by NI 52-109 and Canadian Securities Laws, and the Company is not aware, and has not been advised by its auditors, of any “material weakness” (as defined in NI 52-109) therein; (w) since June 30, 2021, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; (x) to the knowledge of the Company, none of the Company’s directors or officers is now, or has ever been, subject to an order or ruling of any securities regulatory authority or stock exchange prohibiting such individual from acting as a director or officer of a public company or of a company listed on a particular stock exchange; (y) no director or officer, former director or officer, or shareholder or employee of, or any other person not dealing at arm’s length with, any of the Company, its subsidiaries or predecessor companies, will continue after the Closing to be engaged in any material transaction or arrangement with or be a party to a material contract with, or have any material indebtedness, liability or obligation to, the Company or any of its subsidiaries, except as disclosed in the Offering Documents or for employment or consulting arrangements with employees or consultants or those serving as a director or officer of the Company or any of its subsidiaries as described in the Offering Documents; (z) neither the Company nor any of its subsidiaries is in breach or violation of: (A) any term or provision of its constating documents or by-laws, (B) any resolution of its board of directors or shareholders, or (C) except as would not have a Material Adverse Effect, any contract, mortgage, deed of trust, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease, judgment, decree, order, statute, rule, license, law or regulation applicable to it or by which it is bound; (aa) the execution and delivery by the Company of this Agreement and the performance by the Company of its obligations hereunder, and the issuance and sale of the Shares contemplated hereby: (i) will not result in any breach or violation of, or be in conflict with, or constitute a default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a default under: (A) any term or provision of the constating documents or by-laws of the Company or any of its subsidiaries, or to the knowledge of the Company, of Yello Company Limited, (B) any resolution of the board of directors or shareholders of the Company or any of its subsidiaries, or (C) except as would not have a Material Adverse Effect, any contract, mortgage, note, indenture, joint venture or partnership arrangement, agreement (written or oral), instrument, lease, judgment, decree, order, statute, rule, license, law or regulation applicable to the Company or any of its subsidiaries or by which the Company or any of its subsidiaries is bound, and (ii) except as would not have a Material Adverse Effect, will not give rise to any Lien in or with respect to the properties or assets now owned or hereafter acquired by the Company or any of its subsidiaries or the acceleration or the maturity of any debt under any indenture, mortgage, lease, agreement or instrument binding or affecting the Company or any of its subsidiaries or any of their properties or assets; (bb) the Offering Documents describe, to the extent required by applicable Canadian Securities Laws, all material contracts (as defined in Canadian Securities Laws) of the Company; (cc) no approval, authorization, consent or other order of, and no filing, registration or recording with, any Governmental Authority or other person is required of the Company in connection with: (i) the execution and delivery by the Company of this Agreement, (ii) the performance by the Company of its obligations under this Agreement, and (iii) the issuance, sale and distribution of the Shares in the manner contemplated by the Offering Documents, except, in each case, as have been or will be obtained or made prior to Closing; (dd) except as disclosed in the Offering Documents, to the knowledge of the Company, there is no pending or contemplated introduction of or change to any law, regulation or position of a ~~significant acquisition~~ Governmental Authority that would have a Material Adverse Effect; (ee) this Agreement and the performance of the Company’s obligations hereunder, the execution and filing with the Canadian Securities Regulators of the Offering Documents and any Offering Document Amendments and the issuance and sale of the Shares have been or will at the Closing Time be duly authorized by all necessary corporate action, and this Agreement has been duly executed and delivered by the Company; (ff) except as disclosed in the Offering Documents or as otherwise disclosed in writing to the Underwriters and except for such agreement(s) as will be terminated on or prior to the puClosing Date, there are no shareholders’ agreements, voting agreements, investors’ rights agreements or other agreements in force or effect to which the

Appears in 1 contract

Sources: Underwriting Agreement (Nuvei Corp)

Additional Representations and Warranties of the Company. ~~In this Section 9, references to the "Company" unless the context requires otherwise, includes the Company's subsidiaries, including RM.~~ The Company represents and warrants to the ~~Agents~~Underwriters, and acknowledges that the ~~Agents~~ Underwriters are relying upon such representations and warranties in purchasing the ~~offer~~ Firm Shares and ~~sale~~ the Optional Shares, if any, that, as of the ~~Offered Shares~~date hereof, ~~that~~as of the Closing Date and as of each Option Closing Date: (a) the Company and RM have been duly incorporated or organized and are validly existing and in good standing under the laws of the jurisdiction of their incorporation and have all requisite corporate capacity, power and authority to carry on their business, as now conducted and as presently proposed to be conducted by them, and to own their properties and assets and conduct their business (and to own their proposed properties and proposed assets and conduct their proposed business) as described in the Prospectus; (b) all of the issued and outstanding shares of, or other equity interests in, RM are owned directly or indirectly by the Company, have been duly and validly authorized and issued, are fully paid and non-assessable, and are owned by the Company free and clear of any Liens or other adverse claims whatsoever and there are no contracts, agreements or other arrangements pursuant to which any person has, or to the knowledge of the Company could have, the right to acquire any ownership interest in RM; (c) immediately prior to the Closing, other than as described in the Prospectus, the Company will have no subsidiaries, nor will it be affiliated with or a "holding corporation" of any other body corporate (within the meaning of such term in the Securities Act (Alberta)), nor will it be a partner of any partnerships (other than participating in industry partnerships in the ordinary course of business) or limited partnerships, and the Company will have no shareholdings in any other Company or business organization; (d) except as disclosed in the Final Prospectus, since December 31, 2017: (i) there has been no Material Adverse Change (actual, anticipated, contemplated or threatened, financial or otherwise); (ii) there has been no transaction entered into by the Company which is material to the Company; (iii) there There has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its ~~shares; (iv) there has not been any material change~~ shares other than as disclosed in the ~~share capital~~Offering Documents; (b) The Company has been duly incorporated and is a valid and existing corporation under the Canada Business Corporations Act and has all requisite corporate power, ~~long-term debt~~capacity and authority to carry on its business as described in the Offering Documents and to own and lease its properties and assets and to execute and file with the Canadian Securities Regulators and the SEC the Offering Documents and the Offering Document Amendments, ~~short-term debt~~if any, ~~net current assets, net assets, financial condition or operations~~ in each case to the extent required to be so executed and filed; (c) Each of the ~~Company or any~~ Subsidiaries has been duly incorporated and is a valid and existing corporation under the laws of ~~the subsidiaries other than changes~~ its jurisdiction of incorporation and has all requisite corporate power, capacity and authority to own and lease its properties and assets and to carry on its business as presently conducted and as proposed to be conducted as contemplated in the ~~ordinary course of business;~~ Offering Documents; (d) Other than The ▇▇▇▇ Group Inc. (Canada) and ▇▇▇▇ Group (vU.S.) ~~none of~~ Inc., the Company ~~or any~~ has no subsidiaries required to be disclosed pursuant to item 3.2 of ~~its subsidiaries has cancelled any debts or entitlements~~Form 51-102F2; (e) ~~except where non-compliance does not have and would not reasonably be expected to have a Material Adverse Effect,~~ Each of the Company and the Subsidiaries is qualified to carry on business under the laws of each jurisdiction in which it carries on a material portion of its business; (f) Each of the Company and the Subsidiaries has ~~conducted,~~ conducted and is conducting and will conduct its business in compliance in all material respects with all applicable laws, rules and regulations or other lawful requirements of any Governmental Authority applicable to it of each jurisdiction in which it carries on ~~and will carry on~~ a material portion of its business and the Company has not received any notice of any alleged violation of any such laws, rules and regulations; (f) the Company, RM, and their respective directors, officers and employees: (i) are and at all times have been in full compliance with all applicable statutes, rules, regulations, ordinances, orders, decrees and guidances including, without limitation, the ACMPR and all similar or related international, federal, state, provincial or local statutes, regulations and directives applicable to the business of the Company and of RM; (ii) have not received any correspondence or notice from Health Canada or any other Governmental Authority alleging or asserting material noncompliance with the ACMPR or any other applicable law or supplement or amendment thereto; and (iii) have not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or RM or any of their respective directors, officers and/or employees is in violation of the ACMPR or any other applicable law and have no knowledge or reason to believe that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such claim, suit, proceeding, charge, hearing, enforcement, audit, inspection, investigation, arbitration or other action; (g) the Company has provided the Lead Agent with copies of all material documents and correspondence relating to RM's application for a licence to produce medical marijuana pursuant to section 35 of the ACMPR (the "Licence to Produce"); (h) the Company has filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required under the ACMPR and by Health Canada in respect of RM's application for the Licence to Produce; (i) neither the Company, nor RM, nor any other subsidiary of the Company, to the knowledge of the Corporation, is required to obtain any permits or licences other than the License to Produce and licenses or permits expected to be obtained in the ordinary course of business, either from Health Canada or any other federal, provincial, state or municipal regulatory body or self-regulatory body, in connection with the conduct of the business of the Company as currently conducted or proposed to be conducted; (j) all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company to the knowledge of the Company, in connection with its business is being conducted in accordance with best industry practices and all applicable laws and in compliance, in all material respects, with all industry, laboratory safety, management and training standards applicable to its current and proposed business, and all such processes, procedures and practices, required in connection with such activities are in place as necessary and are being complied with, in all material respects; (k) except as disclosed in the Prospectus, the Company holds all licenses~~, permits~~, registrations and qualifications in all jurisdictions in which it carries on ~~its~~ business which are necessary or desirable to carry on the business of the Company and ~~of RM, as~~ the ~~case may be,~~ Subsidiaries as now conducted and as ~~presently proposed~~ contemplated to be ~~conducted;~~ conducted in the Offering Documents (~~ii)~~ except where the failure to so conduct its business or to hold such licenses, registrations or qualifications would not, individually or in the aggregate, have a Material Adverse Effect), all such ~~licences, permits~~licenses, registrations or qualifications are valid and existing and in good ~~standing;~~ standing (~~iii~~except where the lack of such valid or existing license would not have any Material Adverse Effect) ~~all~~ and none of such licenses, ~~permits~~registrations or qualifications contains any burdensome term, ~~registrations and qualifications and~~ provision, condition or limitation which has or is likely to have any ~~related application materials and correspondence has been provided to~~ Material Adverse Effect; (g) Other than as disclosed in the ~~Agents; and (iv)~~ Offering Documents, the Company is not aware of any ~~legislation~~proposed laws, ~~regulation, rule~~ rules or lawful requirements presently in force or proposed to be brought into force which the Company anticipates the Company or the Subsidiaries will be unable to comply with without materially adversely affecting the Company or the Subsidiariesregulations that would have a Material Adverse Effect; (lh) neither the Company, nor any of its subsidiaries, including RM, is involved as at the date hereof in any "marijuana-related activities" in the United States within the meaning of CSA Staff Notice 51- 352 – Issuers with U.S. Marijuana-Related Activities (Revised); (m) the The minute books ~~and corporate records~~ of the Company and ~~its subsidiary made available~~ each of the Subsidiaries are, in ~~connection with the Agents' due diligence investigations are true and complete copies thereof and contain copies of~~ all material ~~proceedings of the shareholders~~respects, ~~the directors~~true, ~~all committees of the directors of each that have been minuted or resolved, as applicable,~~ complete and there have been no other meetings, resolutions or proceedings of the shareholders, directors or any committee thereof, other than meetings, resolutions or proceedings of the directors or committees thereof for which the minutes are in draft form (copies of the drafts of which have been provided to counsel for the Agent, if applicable), to the date of review of such minute books and corporate records, other than those which are not material in the context of such entities, as applicablecorrect; (ni) ~~the~~ The books of account and other records of the ~~Company~~Company and each of the Subsidiaries, whether of a financial or accounting nature or otherwise, have been maintained in accordance with prudent business practices ~~that are customary~~ in ~~the business in which the Company is engaged~~all material respects; (oj) Other than where the ~~Company's insurance policies~~ failure do so would not have a Material Adverse Effect, the Company and each of the Subsidiaries has duly and on a timely basis filed all tax returns required to be filed by it, has paid all taxes due and payable by it and has paid all assessments and reassessments and all other taxes, governmental charges, penalties, interest and other fines due and payable by it and adequate provision has been made for taxes payable for any completed fiscal period for which tax returns are ~~valid~~ not yet required to be filed and ~~enforceable and in full force and effect~~there are no agreements, ~~are underwritten by unaffiliated and reputable insurers~~waivers, ~~are sufficient~~ or other arrangements providing for ~~all applicable requirements~~ an extension of law and provide insurance, including liability and product liability insurance, in such amounts and against such risks as is customary for corporations engaged in businesses similar to that carried on by the Company. The Company is not in default in any respect time with respect to the filing of any tax return or payment of any ~~premium~~ tax, governmental charge or ~~compliance~~ deficiency by the Company or any Subsidiary and to the knowledge, information and belief of the Company there are no material actions, suits, proceedings, investigations or claims threatened or pending against the Company or any Subsidiary in respect of taxes, governmental charges or assessments or any material matters under discussion with any ~~of the provisions contained in~~ Governmental Authority relating to taxes, governmental charges or assessments asserted by any such insurance policy and has not failed to give any notice or present any claim within the appropriate time therefor. There are no circumstances under which the Company would be required to or, in order to maintain its coverage, should give any notice to the insurers under any such insurance policy which has not been given. The Company has not received notice from any of the insurers regarding cancellation of such insurance policyauthority; (pk) No consent, approval, permit, authorization, or order of, or no filing with, any court or Governmental Authority is required by the Company or necessary for the execution, delivery and the performance by the Company of its obligations under this Agreement, other than as may be required under the Applicable Securities Laws with regard to the distribution of the Shares or as have been or will be obtained or made prior to the Closing Date; (l) The Company has all requisite corporate power, capacity and authority to enter into ~~and deliver~~ this Agreement and to perform its obligations ~~hereunder~~ under this Agreement (~~including~~ including, without limitation, to create, issue and sell the execution and delivery of the Preliminary Prospectus, the Final Prospectus and any Prospectus Amendments and the filing of each of them with the Securities Commissions in accordance with this Agreement) and thereunderShares), and this Agreement has been duly authorized by all necessary corporate action and has been duly executed and delivered by the ~~Company~~ Company, and ~~constitutes~~ this Agreement is a legal, valid and binding obligation of the ~~Company,~~ Company enforceable against the Company in accordance with its terms, subject to the ~~general qualifications that~~following: (i) ~~enforcement~~ enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors' ’ rights generally; (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law), (iii) equitable remedies, including the remedies of specific performance and injunctive relief, are available only in the discretion of the applicable court; (~~iii~~iv) the courts having jurisdiction may have equitable or statutory powers ~~of the courts in Canada having jurisdiction~~ to stay proceedings before them and the execution of judgments; , and (ivv) rights to indemnity and contribution hereunder may be limited under applicable law; (m) The Company has all requisite corporate power, capacity and authority to perform its obligations under the Acquisition Agreement, and the Acquisition Agreement has been duly authorized, executed and delivered by the Company, and is a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the following: (i) enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors’ rights generally; (vii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law), (iii) equitable remedies, including the remedies of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined specific performance and injunctive relief, are available only in the discretion of the applicable court; (iv) the courts having jurisdiction may have equitable or statutory powers to stay proceedings before them and ~~(vi) enforceability~~ the execution of ~~the provisions exculpating a party from liability or duty otherwise owed by it may be limited under applicable law~~judgments; (qn) the Company is and its Subsidiaries are not in default under or in breach of, and the ~~execution and delivery of~~execution, ~~and the~~ delivery, performance of and compliance with the terms ~~of,~~ of this Agreement ~~and the performance of any of the transactions contemplated hereby~~ by the ~~Company, do not and~~ Company will not result in any breach of, or be in conflict with or constitute a default under, ~~and do not and will not~~ or create a state of facts which, after notice or lapse of time or both, ~~will result in a breach of or~~ would constitute a ~~default~~ default, or give rise to any lien, under~~, any term~~ : (i) the articles or ~~provision of the articles,~~ by-laws ~~or resolutions~~ of the ~~directors~~ Company or ~~shareholders of~~ its Subsidiaries, as the ~~Company~~case may be; (ii) any material contract, ~~or any~~ mortgage, note, indenture, ~~contract, agreement (written or oral)~~agreement, instrument, lease or other document to which the Company or any of its Subsidiaries is a party or by which ~~it is~~ the Company or its Subsidiaries, are bound; (iii) any resolutions of the directors, or securityholders, as applicable, of the Company or its Subsidiaries; or (iv) any judgment, decree~~, law~~, order, statute, rule or regulation applicable to the ~~Company~~Company or its Subsidiaries which would, ~~which default or breach might reasonably be expected to result~~ in any such event, have a Material Adverse Effect; (ro) There has not been any material change in the ~~Financial Statements have been prepared in conformity with International Financial Reporting Standards applied on a consistent basis throughout the periods involved and present fairly~~capital, ~~in all material respects: (i) the financial position and condition of the Company at the dates thereof, the results of operations of the Company for the periods then ended, and all material~~ assets, liabilities or obligations (absolute, accrued, contingent or otherwise) of the ~~Company; and~~ Company from the position set forth in the Financial Statements except as disclosed in the Offering Documents and there has not been any adverse material change in the business, operations, capital, properties, assets, liabilities (iiabsolute, accrued, contingent or otherwise), condition (financial or otherwise) ~~the revenue, royalties, operating expenses, and operating income~~ or results of operations of the ~~assets~~ Company and the Subsidiaries (taken as a whole) since the date of the ~~Company~~Financial Statements, except as disclosed in the ~~case may be~~Offering Documents; and since that date there have been no material facts, transactions, events or occurrences which could materially adversely affect the business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of the Company and its Subsidiaries (taken as a whole) which have not been disclosed in the Offering Documents; (sp) The Financial Statements present fairly, in all material respects, in accordance with IFRS, consistently applied, the financial ~~data under~~ position and condition, the ~~heading "~~results of operations, cash flows and the other information purported to be shown therein of the Company on a consolidated basis as at the dates thereof and for the periods then ended and reflect all assets, liabilities and obligations (absolute, accrued, contingent or otherwise) of the Company on a consolidated basis as at the dates thereof required to be disclosed by IFRS; (q) The Selected Financial ~~Information" contained~~ Information included in the ~~summary of the Final Prospectus~~ Offering Documents has been compiled on a basis consistent with that of the Financial Statements; (r) The Pro Forma Financial Statements have been prepared in accordance with IFRS, consistently applied, and have been prepared and presented in accordance with Applicable Securities Laws. The Pro Forma Financial Statements include all adjustments necessary to present fairly in all material respects the pro forma consolidated financial position of the Company as at the dates and for the periods referred to in the Pro Forma Financial Statements after giving effect to the completion of the Acquisition and do not contain a misrepresentation. The assumptions contained in such Pro Forma Financial Statements are suitable, supported and consistent with the consolidated financial results of the Company. The Pro Forma Financial Information included in the Offering Documents has been compiled on a basis consistent with that of the Pro Forma Financial Statements; (s) There are no off-balance sheet transactions, arrangements, obligations (including contingent obligations) or other relationships of the Company or its Subsidiaries with unconsolidated entities or other persons required to be disclosed by Applicable Securities Laws in a prospectus to be filed with the SEC or the Canadian Securities Regulators that are not described in the Offering Documents; (t) Based upon representations made by the Company’s auditor to the Company, the Company’s auditor is an independent chartered accountant with respect to the Company ~~will~~as required by Applicable Securities Laws; (u) There has not been any reportable disagreement (within the meaning of Section 4.11 of National Instrument 51-102—Continuous Disclosure Obligations of the Canadian Securities Administrators) with the Company’s auditor; (v) To the knowledge of the Company after due inquiry, ~~following~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, who has certified certain financial statements of the ~~Closing~~Acquired Business and delivered its report with respect to the audited consolidated financial statements of the Acquired Business and the schedules included or incorporated by reference in each of the Time of Sale Prospectus and Final Offering Documents, ~~maintain~~ is an independent auditor with respect to the Acquired Business within the meaning of Applicable Securities Laws and the American Institute of Certified Public Accountants Code of Professional Conduct and its interpretations; (w) The Company maintains a system of internal control over financial reporting that complies with the requirements of NI National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings of the Canadian Securities Administrators, and has been designed by the Company's ’s Chief Executive Officer and Chief Financial Officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with ~~International Financial Reporting Standards~~IFRS. ~~Other than as disclosed in the Responses, the~~ The Company is not aware of any material weaknesses in its internal control over financial reporting. The Company ~~will, following the Closing, maintain~~ maintains a system of disclosure controls and procedures that is designed to provide reasonable assurance that information required to be disclosed by the Company under Applicable ~~Canadian~~ Securities Laws is recorded, processed, summarized and reported within the time periods specified under Applicable ~~Canadian~~ Securities Laws and to ensure that information required to be disclosed by the Company under Applicable ~~Canadian~~ Securities Laws is accumulated and communicated to the Company's ’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure; (ux) Each of the Company ~~is the absolute legal~~ and ~~beneficial owner of, and~~ its Subsidiaries has ~~good and marketable title to, all of the material~~ its properties and assets ~~thereof, including the RM Property,~~ insured against loss or damage by insurable hazards or risks that is of a type and ~~no other property or assets are necessary for the conduct of~~ in an amount typical to the business in which the Company operates as conducted by a reasonably prudent person based on the advice of reputable insurance brokers consulted by such person; in the last twelve months neither the Company nor its Subsidiaries have made any material claim on any policy of insurance or been refused any material insurance coverage sought or applied for; and the Company does not have any reason to believe that it will not be able to renew the existing insurance coverage of the Company or its Subsidiaries as ~~currently conducted. Any~~ and ~~all of the agreements and other documents and instruments pursuant~~ when such coverage expires or obtain similar coverage from similar insurers as may be necessary to which the Company holds the property and assets thereof (including any interest in, or right to earn an interest in, any Intellectual Property) are valid and subsisting agreements, documents and instruments in full force and effect, enforceable in accordance continue with the terms thereof, and such properties and assets are in good standing under the applicable statutes and regulations of the jurisdictions in which they are situated, and all material leases, licenses and other agreements pursuant to which the Company derives the interests thereof in such property are in good standing. To the Company's knowledge, there is no claim nor the basis of any claim that might or could materially adversely affect the right of the Company to use, transfer or otherwise exploit its assets (including Intellectual Property), none of the properties (or any interest in, or right to earn an interest in, any property) of the Company is subject to any right of first refusal or purchase or acquisition right, and the Company has no responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; (v) the properties and assets of the Company are free and clear of all mortgages, pledges, Liens, charges and encumbrances and the Company has not done any act or suffered or permitted any action to be done whereby any person has acquired or may acquire an interest in or to the material properties and assets of the Company, nor has it done any act, omitted to do any act or permitted any act to be done businesses at a cost that would ~~reasonably be expected to~~ not have a Material Adverse Effect; (wy) ~~no proposed acquisition by~~ To the knowledge of the Company, all material receivables recorded on the books of the Company are bona fide and are good and collectible without set off or counterclaim; (z) Except as disclosed in the Offering Documents, the Company has ~~progressed to a state where a reasonable person would believe that~~ undertaken an asset analysis and the ~~likelihood~~ Company does not anticipate making any material write downs in respect of the assets of the Company ~~completing~~ or any parts thereof; (aa) All material bonuses, commissions, salaries and other amounts owing to employees are reflected and have been accrued in the ~~acquisition is high~~ books of account of the Company; (bb) Each Employee Plan has been maintained in all material respects in accordance with its terms and ~~that~~with the requirements prescribed by any and all statutes, ~~if completed by~~ orders, rules and regulations that are applicable to such Employee Plan; (i) Each of the Company at and its Subsidiaries is in compliance with the ~~date~~ provisions of all applicable federal, provincial, local and other laws and regulations respecting employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to do so would not, individually or in the aggregate, have a Material Adverse Effect; (ii) no collective labor dispute, grievance, arbitration or legal proceeding is ongoing, pending or, to the knowledge of the ~~Final Prospectus~~Company, threatened and no individual labor dispute, grievance, arbitration or legal proceeding is ongoing, pending or, to the knowledge of the Company, threatened with any employee of the Company or any of its Subsidiaries that would be have a ~~significant acquisition for~~ Material Adverse Effect, and, to the puknowledge of the Company, no such collective labor dispute, grievance, arbitration or legal proceeding has occurred during the past year; and (iii) except as disclosed in the Offering Documents or as required by applicable law, no union has been accredited or otherwise designated to represent any employees of the Company or any of its Subsidiaries and, to the knowledge of the Company, no accreditation request or other representation qu

Appears in 1 contract

Sources: Underwriting Agreement (Boyd Group Services Inc.)

Common use of Additional Representations and Warranties of the Company Clause in Contracts